Case 1:14-cv-01588-LMB-IDD Document 1 Filed 11/20/14 Page 1 of 7 PageID# 1

THOMAS PORTER

FILED

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA

(Alexandria Division)

20HIN0V2O P 3=31

CLERK US DISTRICT COURT ALEXANDRIA, VIRGINIA

and

ANTHONY JUNIPER and IVAN TELEGUZ and

l i s t C.A. #l:14-cv-

MARK LAWLOR and

RICKY GRAY
Plaintiffs,

v.
HAROLD C. CLARKE and KEITH W. DAVIS,
Defendants.

COMPLAINT Preliminary and Jurisdictional Statement
1. In this lawsuit for declaratory and injunctive relief, five Virginia Death Row prisoners seek relief from a mandatory regimen of spending almost 24 hours per day in their small cells, 365 days a year, and having almost no contact with other human beings. Their claims arise

Case 1:14-cv-01588-LMB-IDD Document 1 Filed 11/20/14 Page 2 of 7 PageID# 2
under the Eighth and Fourteenth Amendments to the United States Constitution and 42 U.S.C.
§1983. This court has jurisdiction under 28 U.S.C. §1331 and 28 U.S.C. §1343(a)(3) and (4).
Parties
2. Plaintiffs Thomas Porter, Anthony Juniper, Ivan Teleguz, Mark Lawlor, and Ricky Gray are residents of Virginia's Death Row located in Sussex I State Prison in Waverley, Virginia. Each awaits his execution in the event pending post-conviction initiatives do not succeed in avoiding that result. They have spent, respectively, the following time on Death Row: Thomas Porter: over seven years; Anthony Juniper: over nine years; Ivan Teleguz: over eight years; Mark Lawlor: over three years; and Ricky Gray: over eight years.
3. Defendant Harold C. Clarke isthe Director of the Virginia Department of Corrections
("VDOC"). He provides final approval ofrules applicable to Death Row inmates. He is sued in his official capacity for declaratory and injunctive relief.
4. Defendant Keith W. Davis is the warden ofSussex I State Prison in Waverley. He is
in charge of implementing rules and procedures for Death Row unit. He is sued in his official capacity for declaratory and injunctive relief.
Claim for Relief
5. Death Row iscomposed of a 44-cell pod containing eight death row prisoners, including the plaintiffs, and 36 empty cells. None of the prisoners' cells is adjacent to that of
another.

Case 1:14-cv-01588-LMB-IDD Document 1 Filed 11/20/14 Page 3 of 7 PageID# 3
6. With the exception of one prisoner, Alfredo Prieto, all other Death Row prisoners are governed, by administrative fiat, by the protocol described by this court in Prieto v. Clarke, et al., No. l:12cvl 199; 2013 WL 6019215 (E. D. Va. Nov. 12, 2013), a copy of which is appended to this complaint and the findings of which are incorporated here by reference. Some of those findings include:
A. "On average, [plaintiffs] must remain in [their] single cell for all but one hour of the day" ... the "cell measures 71 square feet and features only a narrow, mesh covered window for natural light. It is otherwise illuminated by a main light mounted on the wall. In the eveninghours, when the main light is turned off, a
nightlight remains on in plaintiffs['] cell[s], as do the pod lights immediately outside of it, ensuring that [their] cell is nevercompletely dark." Id. at 1. B. "[Each pjlaintiff is allowed to leave his cell for just one hour of outdoor recreation approximatelyfive days per week. During that time, however, he is limited to a similarly-sized outdoor cell with a concrete floor and no exercise equipment. [Each pjlaintiffis not allowed to use the gymnasium or prison yard, noris he given an opportunity for in-pod recreation. [Each pjlaintiff may leave his cell for a ten-minute shower three days per week. [Each plaintiff] may also purchase a television set and compact disc player for use in his cell as well as request delivery of certain books from the law library." Id. C. "Perhaps the most significant restrictions are those depriving plaintiff[s] ofhuman contact. [Each plaintiff] must spend almost all of his time alone. Although death row houses [eight inmates], they are separated by at least two (and often many

Case 1:14-cv-01588-LMB-IDD Document 1 Filed 11/20/14 Page 4 of 7 PageID# 4
more) empty cells within the 44-unit pod." Id. "Solid doors with no openings apart from small slits substantially impede any communication among death row inmates... [each] plaintiff takes all three meals in his cell." Id. "... [Each plaintiff is not allowed to join general population inmates for vocational, educational, or behavorial programming, nor is he allowed to attend group religious services." Id. D. "Visitation opportunities are limited to non-contact visits from immediate family members on weekends in a room with a glass partition." Id. E. "Capital offenders ... receive no ... initial security classification. Instead, based on sentence alone, they are automaticallyplaced in restrictive conditions on death row.. .[and] their placement is permanent."Id. at 2.
7. Mr. Porter is allowed out of his cell for approximately one hour each week to perform cleaning duties as a trustee. Mr. Gray is occasionally allowed out of his cell for very brief periods of time to cut the hair ofother Death Row inmates. In all regards, their lives go along the same lines as those of the other plaintiffs, described by this court in Prieto.
8. In2012, prisoner Alfredo Prieto then on Death Row since September 2010, filed suit in this court against thedefendants in the instant suit, claiming that the above-described conditions of life on Death Row were unconstitutional. He prevailed on his due process claim, the court, perBrinkema, J., handing down the above referenced opinion in his favor.
9. Since prevailing in his case, and notwithstanding that the defendants have taken an appeal from this court's decision in his case, Mr. Prieto has been granted new privileges,
including exercise privileges inthe gymnasium and contact visits with his immediate family.

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10. Defendants have been asked to extend the relief provided to Mr. Prieto to the plaintiffs, but have refused to do so.
11. Defendants' refusal to extend to plaintiffs the relief granted Mr. Prieto is not based on any individualized consideration of their circumstances, but on the same administrative fiat as governed Mr. Prieto until this court intervened.
12. Defendants have appealed this court's grant of relief in Prieto, but have not obtained a stay of this court's declaratory and injunctive order.
13. Defendants' maintenance of plaintiffs in accordance with the unmitigated administrative segregation described above and in Prieto inflicts, and will continue to inflict, great mental suffering as well as physical distress upon the plaintiffs. It is unrelated to any legitimate penological goal, and constitutes a form of psychological torture that amounts to the gratuitous infliction of cruel and unusual punishment upon them.
Causes of Action Count I: Denial of Due Process
14. Defendants continue to deny Death Row inmates other than Mr. Prieto, including the plaintiffs, due process of law in relation to their placement in segregated confinement, leading to
the same due process offenses as were found unconstitutional in Prieto.
Count II: Denial of Equal Protection
15. Plaintiffs are similarly situated in all material regards to Alfredo Prieto. They differ
from him only in the fact that he brought and won a lawsuit challenging the conditions imposed

Case 1:14-cv-01588-LMB-IDD Document 1 Filed 11/20/14 Page 6 of 7 PageID# 6
upon all Death Row inmates. Nevertheless, defendants have chosen to apply this court's Prieto mandate solely to Mr. Prieto. This decision violates the plaintiffs' right to equal protection of the law, as Mr. Prieto's legal success, while requiring defendants to grant him relief over their own objections, did not otherwise change Mr. Prieto, or his relationship to the prison where he resides, its personnel and its other inmates.
Count III: Imposition of Cruel and Unusual Punishment
16. The permanent, unmitigated segregation of which plaintiffs complain here subjects them to an inhumane existence unrelated to any legitimate penological goal, amounting to the imposition of cruel and unusual punishment violating the Eighth Amendment.
Relief Sought Wherefore, plaintiffs request an order of this court * Extending to plaintiffs the declaratory relief awarded Mr. Prieto,
* Enjoining defendants from failing to extend to the plaintiffs the rights and privileges afforded Mr. Prieto as a result of this court's order in his case,
* Awarding them reasonable attorney's fees and costs pursuant to 42 U.S.C. §1988;
and,
* Granting them such other relief as isjust. Respectfully submitted,
THOMAS PORTER, et al., By counsel
-6-

Case 1:14-cv-01588-LMB-IDD Document 1 Filed 11/20/14 Page 7 of 7 PageID# 7
Dated: Novembei^^OM
Counsel for Plaintiffs:
I, VSB #16184 Victor M. Glasberg & Associates
121 S. Columbus Street
Alexandria, VA 22314
(703) 684-1100/Fax: 703-68/1-1104
vmg@robinhoodesq.com
P(inerThonias\DrafU\Complaint(2014-1lt>7)
Jeffrey E. Fogel, VSB #75643
913 E.Jefferson Street
Charlottesville, VA 22902
434-984-0300
ieff.fogelfa)gmail.com Steven D. Rosenfield, VSB #16539
913 E.Jefferson Street
Charlottesville, VA 22902
434-984-0300 attvrosen@aol.com
-7-

 
 IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division

THOMAS PORTER, et aL Plaintiffs,
v
HAROLD W. CLARKE, et al., Defendants.

)

)
)

)

)

l:14-cv-1588(LMB/IDD)

) )
) )

MEMORANDUM OPINION
Before the Court are the parties' cross-motions for summary judgment. All ofthe four
plaintiffs in this civil action have been convicted of capital murder, sentenced to death, and are awaiting execution ofthat sentence while confined in a single unit ("death row") at Virginia's
Sussex I State Prison ("SISP"). Plaintiffs claim that the conditions oftheir confinement at SISP at the time they filed this civil action violated the Eighth Amendment. In the intervening period between when plaintiffs' Complaint was filed and the motions for summary judgment were filed, defendants made several significant changes to those conditions, resulting in new conditions of
confinement that plaintiffs concede do not violate the Eighth Amendment. Nevertheless, plaintiffs argue that they are entitled to an injunction, the issuance and scope of which would be

governed by the Prison Litigation Reform Act of 1995 ("the PLRA"), to ensure that defendants do not reinstate the allegedly unconstitutional conditions that were in place when plaintiffs filed

their Complaint. Defendants do not concede that the previous conditions violated the Constitution and argue that given the current conditions, there is no reason to either decide the
constitutional question orto impose an injunction. The motions have been fully briefed and

argued. For the reasons that follow, defendants' motion will be granted and plaintiffs' motion
will be denied.
I. PROCEDURAL BACKGROUND
Plaintiffs are four individuals currently incarcerated on death row at SISP. Mem. in Supp.
of Defs.' Mot. for Summ. J. [hereinafter Defs.' Br.], Ex. 1, Aff. of Harold C. Clarke [Dkt. No.
110-1] 1 10, Dec. 21, 2015 ("Clarke Aff.").1 Plaintiff Mark Lawlor ("Lawlor") has spent more
than four years on death row, plaintiff Thomas Porter ("Porter") has spent more than eight years
on death row, plaintiff Ricky Gray ("Gray") has spent more than nine years on death row, and
plaintiff Anthony Juniper ("Juniper") has spent more than ten years on death row. Mem. in
Supp. of Pis.' Mot. for Summ. J. [hereinafter Pis.' Br.], Pis.' Statement of Undisputed Material
Facts [Dkt. No. 115] H1, Dec. 21, 2015 ("Pis.' SOF"); see also Resp. in Opp'n to Pis.' Mot. for
Summ. J. [hereinafter Defs.' Opp'n], Contested Factual Representations & Statement of Genuine
Issues [Dkt. No. 125], Jan. 11, 2016 ("Defs.' Resp. to Pis.' SOF") (not contesting these facts).
Plaintiffs initially filed a three-count Complaint against defendants Harold W. Clarke
("Clarke"), who has been the director of the Virginia Department of Corrections ("VDOC")
1Seven inmates are currently assigned to death row, but one is currently receiving mental health services at a separate facility and therefore is not currently housed at SISP. Defs.' Br., Ex. 4, Aff. of Tawanda Lyons [Dkt. No. 110-4] K 13, Dec. 21, 2015 ("Lyons Aff"). An additional death row inmate, Ivan Teleguz, was one of the plaintiffs who filed this action, but he was voluntarily
dismissed from the action on April 1, 2015. Notice of Dismissal of PI. Ivan Teleguz [Dkt. No. 34], April 1, 2015. When this action was filed, eight inmates were assigned to death row; however, Alfredo Prieto was executed during the pendency of this litigation. See infra n.4.
2Inmates spend an average of seven years on Virginia's death row before being executed. Defs.'
Br., Statement of Undisputed Material Facts [Dkt. No. 110] 1| 7, Dec. 21, 2015 ("Defs.' SOF"); see also Pis.' Mem. Opposing Defs.' Mot. for Summ. J. [hereinafter Pis.' Opp'n], App. I, Pis.' Resp. to Defs.' List of Undisputed Facts [Dkt. No. 124], Jan. 11, 2016 ("Pis.' Resp. to Defs.' SOF") (stating that "|p]laintiffs do not dispute the factual assertions" made in paragraph 11 of defendants' Statement of Undisputed Material Facts).

since 2010, and Keith Davis ("Davis"), who was the warden of SISP until May 11, 2015/ in
their official capacities and pursuant to 42 U.S.C. § 1983, claiming that the conditions oftheir
confinement on death row and the procedures for placing them there violatedthe Eighth and
Fourteenth Amendments. See Compl. [Dkt. No. 1] ffl 3-4, Nov. 20, 2014; Answer [Dkt. No. 49]
ffij 3-4, May 5, 2015; see also Clarke Aff. 1 53. Specifically, in Count I oftheir Complaint,
plaintiffs alleged that defendants had denied them due process of law, Count II alleged that
defendants denied plaintiffs equal protection of the law, and Count III alleged that defendants
violated the Eighth Amendment by subjecting plaintiffs to cruel and unusual punishment. Compl.
KK14-16.4
This litigation is related to an earlier civil action brought by a former Virginia death row
inmate, Alfredo Prieto, who claimed that his "automatic and permanent placement in the
restrictive conditions of confinement prevailing on death row violated his rights under the Due
Process Clause of the Fourteenth Amendment." Prieto v. Clarke. No. l:12cvl 199, 2013 WL
6019215, at *3 (E.D. Va. Nov. 12, 2013), rev'd, 780 F.3d 245 (4th Cir. 2015), cert, dismissed,
136 S.Ct. 319 (2015).5 Finding that the "dehumanizing conditions" on Virginia's death row were
"undeniably extreme," id. at *6-8, and that automatically imposing those conditions on death row
3David Zook ("Zook") is now the warden of SISP, Defs.' Br., Ex. 4, Aff. of David Zook [Dkt.
No. 110-3] 1 7, Dec. 21, 2015 ("Zook Aff"), and was substituted as a defendant in place of Davis. Order [Dkt. No. 151], Mar. 24, 2016. Additionally, Clarke was originally misnamed in the Complaint as Harold C. Clarke, and his name was later corrected. Id
4Defendants initially moved to dismiss plaintiffs' Eighth Amendment and equal protection
claims, Mem. in Supp. of Defs.' Mot. to Dismiss [Dkt. No. 21], Feb. 4, 2015, which motion was denied. Order [Dkt. No. 41], Apr. 17, 2015.
5Prieto also initially raised a claim that SISP's visitation policies violated the Eighth
Amendment. Prieto, 2013 WL 6019215, at *3. The Court dismissed that claim pursuant to 28 U.S.C. § 1915A(b)(l), and although Prieto appealed, he failed to prosecute the claim and the
appeal was dismissed. Id

inmates violated the Fourteenth Amendment, this Court granted summary judgment to Prieto and
ordered that the defendants either provide an "individualized classification determination" to
Prieto or improve the conditions on death row, "if only slightly." Id at *10-11. Following that
decision, the VDOC granted Prieto additional privileges not extended to the other death row
inmates, which spurred plaintiffs' equal protection claim in this action. Compl. ffl| 8-11, 15.
In a split panel decision, the Fourth Circuit reversed the Prieto ruling, although in doing
so the court acknowledged that the conditions under which Prieto was confined were
"undeniably severe." Prieto v. Clarke, 780 F.3d 245, 254-55 (4th Cir. 2015), cert, dismissed, 136
S.Ct. 319 (2015).6 Furthermore, in his dissent, Judge Wynn found that Prieto had a liberty
interest in avoiding "the highly restrictive conditions of Virginia's death row," which "deprived
[Prieto] of almost all human contact" and "stimuli." Id. at 255-56 (Wynn, J., dissenting). In light
of the majority decision in Prieto, the parties in this action stipulated to the dismissal of the
Fourteenth Amendment due process and equal protection claims, leaving only the Eighth
Amendment claim in Count III for litigation. Stipulation of Voluntary Dismissal Pursuant to
F.R.C.P. 41(a)(l)(A)(ii) [Dkt. No. 30], Mar. 19, 2015 ("Stipulation of Dismissal").7
Prieto filed a petition for a writ of certiorari, but the Commonwealth of Virginia scheduled Prieto's execution date while that petition was pending, leading Lawlor to seek leave to intervene in the action to prevent it from becoming moot. See Mem. in Supp. of Emergency Mot. for Clarification [Dkt. No. 94] 2-3, Aug. 31, 2015; Mot. for Leave to Intervene, Prieto v. Clarke, 136 S.Ct. 319 (Sept. 9, 2015) (No. 15-31). On October 1, 2015, Prieto was executed, see Tom Jackman, Triple Murderer Alfredo Prieto is Executed in Virginia, Wash. Post, Oct. 1, 2015, available at https://www.washingtonpost.com/local/public-safety/judge-allows-execution-ofalfredo-prieto-to-proceed/2015/10/01/eaec9f28-67c6-l le5-9223-70cb36460919_story.html, and on October 13, 2015, the Supreme Court denied Lawlor's motion for leave to intervene and dismissed Prieto's petition for a writ of certiorari as moot. Prieto v. Clarke. 136 S.Ct. 319 (Oct. 13, 2015), 2015 WL 4105028.
7The parties stipulated that Count I, the due process claim, was dismissed without prejudice, but
plaintiffs preserved the claim for appeal and reserved the right to re file the claim should the

II. FACTUAL BACKGROUND
When this civil action began, the conditions on death row were essentially identical to
those described in the Prieto decision. See Pis.' Br., Ex. 7, Report of Michael L. Hendricks,
Ph.D., ABPP [Dkt. No. 115-9] 7, Dec. 21, 2015 ("Hendricks Report") ("The District Court's
description of the conditions of Virginia's death row in its Prieto decision captured the essence
of Virginia's death row and lines up with my observations."); see also Prieto, 2013 WL 6019215,
at * 1 (describing the conditions on death row). Death row inmates at SISP are housed in a "pod"
that is separate from the ones that house the general population of the prison. Clarke Aff. fl 9,
ll;8 see also Defs.' Br., Ex. 23, Va. Dep't of Corr. Operating Procedure [Dkt. No. 122-2] III,
Dec. 23, 2015 ("OP 460A") (defining the "Death Row Unit" as "[a] separate housing unit set
aside for the custodial control and management of offenders under the sentence of death"). The
VDOC defines the pod as a kind of "segregated" housing but does not use the term "solitary
confinement" or characterize any of its facilities or housing as "solitary confinement." Id fl 8-9
(internal quotation marks omitted). The death row pod consists of two tiers, each holding 22 cells
Fourth Circuit's decision be reversed. Stipulation of Dismissal. Count II, the equal protection claim, was dismissed with prejudice. Id.
Much of the factual material contained in Clarke's affidavit is mirrored in defendants'
Statement of Undisputed Material Facts and is undisputed by plaintiffs. See generally, Defs.' SOF; Pis.' Resp. to Defs.' SOF; see also Pis.' SOF; Defs.' Resp. to Pis.' SOF. Where there is disagreement between the parties over facts relevant to the decision contained in this Memorandum Opinion, that disagreement is noted.
9OP 460A, photographs of SISP facilities, and other materials were filed under seal to ensure the
security of VDOC facilities and SISP; however, that sealing was intended to protect from public dissemination the actual photographs of facilities as well as information pertaining to "the manner of restraining and transporting inmates." See, e.g., Mem. in Supp. of Mot. to Submit Exs. to Mem. in Supp. of Defs.' Mot. for Summ. J. Under Seal [Dkt. No. 108] ffl[ 4-5, Dec. 21, 2015. Although this Memorandum Opinion will cite to certain materials that are under seal, it will only discuss aspects of those materials that are either discussed in public filings by both parties or that can be discussed without jeopardizing SISP security, and therefore, the entirety of this Memorandum Opinion will be filed on the public docket.

and three showers. Id f 11. Each cell measures 71 square feet, with a 10.5-foot-high ceiling. Id. II 12. The cells "are comparable in size" to those shared by general population inmates, but death row inmates do not share cells and are not housed in adjacent cells. Id fl 12-13; Compl. ^| 5; Answer *\\ 5. Each cell has a bed, "a small 'desk' adjacent to the bed, and a commode/sink
combination."10 Hendricks Report 8.
The cells have windows that are 5 inches high by 41.5 inches long. Clarke Aff. ^ 14. Even though the windows are covered in wire mesh for security reasons, they do allow some
natural light to come through and inmates can see out of them. Id1 The cell lights turn on at
5:30 a.m. and stay on until 10:30 p.m., at which time a "low-level 'night light'" is turned on "for security purposes and for the safety of the inmate." ]d. ^fl| 16-17. Each cell door has a tray slot as well as a "rectangular in-set window" from which inmates can look into the pod from their cells. Id. 1f 15. The cell doors are not sound-proof, and inmates do attempt to communicate with other inmates while in their cells, although the parties disagree over how effectively inmates can communicate. See id; Hendricks Report 7; see also Defs.' SOF ^ 14; Pis.' Resp. to Defs.' SOF ^| 14. Plaintiffs may have a television and a compact disc player in their cells, and they may request "materials from the law library and the regular library" in addition to ordering "approved publications" to read. Clarke Aff. ^ 41, 45.
10 Plaintiffs claim that because there is no additional seating in the cells, they were forced to eat
their meals while sitting on the toilet. Pis.' SOF ^j 18. In support of this assertion, plaintiffs cite the declaration submitted by Juniper, which states that he "was required to eat sitting on the toilet or [his] bed." Pis.' Br., Ex. 3, Decl. of Anthony Juniper [Dkt. No. 115-3] t 9, Dec. 21, 2015 ("Juniper Deck"). Juniper also avers that he has now been given a stool on which to sit. Id
11 The parties dispute how much light comes through the cell windows and howclearly inmates
can see out of them. Defs.' SOF H 13; Pis.' Resp. to Defs.' SOF K 13.

When this lawsuit was filed, VDOC Operating Procedure 460A ("OP 460A"), effective March 1, 2010, and the SISP Institutional Rules and Regulations for Offenders, effective February 3, 2010, governed the daily lives of the death row inmates. Id. fl[ 21-22. Under these procedures and regulations, inmates were allowed one hour of outdoor recreation, five days a week, which they spent in individual enclosures "made of steel interlocking mesh" that measured
7.9 feet wide by 20 feet long and 10 feet high. Id If 23; see also OP 460A IV.J.12 The enclosures
lacked any exercise equipment and inmates were prohibited from using adjacent enclosures; nonetheless, some inmates coordinated exercises with one another from their individual enclosures. Defs.' SOF fl 19-20; Pis.' Resp. to Defs.' SOF Iffl 19-20. Inmates were also permitted to leave their cells for a ten-minute shower a minimum of three times a week, OP 460A IV. L., and two inmates, Porter and Gray, were allowed out of their cells to perform their respective institutional jobs as the houseman and the barber for death row. Clarke Aff. ffi| 26-28.
Inmates were permitted to have non-contact visitation on weekends and state holidays, OP 460A IV.N, and could request contact visitation with immediate family members if "extreme
circumstances exist[ed]," butthe Warden had discretion to grant or deny such requests.13 OP
460A IV.N.2; see also Clarke Aff. K51. They also had access to wireless telephones that could be brought to their cell and used seven days per week, between 8:00 a.m. and 9:30 p.m., with each call generally limited to 20 minutes. Clarke Aff. ffl| 43-44; see also Defs.' Br., Ex. 7, Aff. of
12 Plaintiffs contend that these "privileges were routinely suspended" because of "the frequent
lockdowns" of SISP. Pis.' Resp. to Defs.' SOF \ 19.
1 Such requests could "only be submitted once every six (6) months." OP 460A IV.N.2.
Plaintiffs repeatedly emphasize that despite having discretion to allow contact visits, one former warden would only allow such visits "if a prisoner's death were imminent." See, e.g.. Pis.' Br. 26. Defendants respond that different wardens exercised their discretion pursuant to this policy in different ways. Defs.' Resp. to Pis.' SOF H 11.

Joycetine Boone [Dkt. No. 110-7] %13, Dec. 21, 2015 ("Boone Aff") ("[Offenders were given virtually unlimited access to the telephone.").
Besides these limited interactions with fellow inmates and the outside world, death row
inmates had contact with prison staff, including mental health counselors, and could request to have contact visitation with their attorneys on weekdays from 8:00 a.m. to 3:00 p.m., for approximately one hour at a time. ]d fl 47-48; see also OP 460A IV.I. Corrections officers walked through the death row pod performing security checks every 30 minutes, medical personnel made rounds through the pod twice a day, nurses came through the pod twice a day to distribute medications, the mental health practitioner visited once a week, each inmate's case counselor visited the pod daily, and inmates could request additional medical or mental health
care from those practitioners.13 Id. ffij 30-36; see also Lyons Aff. ^j 4; Zook Aff. D21.
Additionally, inmates could request meetings with the chaplain and other "[a]pproved religious
volunteers." Id. 1|1| 38-40.,6 Although death row provided these minimal opportunities for human
interaction, plaintiffs spent "almost all of [their] time alone"—approximately 22 to 23 hours a day in their cells. Prieto. 2013 WL 6019215, at *1.
Defendants and other VDOC officials maintain that these policies were necessary due to the heightened security risks posed by death row inmates and argue that the impact of such
Plaintiffs "[d]ispute that there [were] no limitations on the number of telephone calls prisoners [could] make, because phone calls [from death row] must be made collect, [can only be made] to a limited number of recipients, [and are billed] at high rates." Pis.' Resp. to Defs.' SOF ^ 30.
15 Plaintiffs assert that "requests for medical care routinely go unaddressed," and further
characterize these interactions with prison staff as "brief," "cursory," and "pro forma." Pis.' Resp. to Defs.' SOF Iffl 22-23, 25, 27.
16 Plaintiffs contend that "requests for religious volunteers" are also "routinely denied." Pis.'
Resp. to Defs.' SOF f 27.
8

policies on plaintiffs has not been constitutionally unacceptable. For example, A. David Robinson ("Robinson"), the VDOC's Chief of Corrections Operations, avers that "[w]hen devising policies pertaining to death row inmates, the nature of their underlying crime, as well as
the sentence they are facing, necessitates certain precautions" and "the risk of escape or violence
must... be taken into account," particularly because "[t]hese offenders have already shown
themselves to be capable of murder." Defs.' Br., Ex. 2, Aff. of A. David Robinson [Dkt. No.
110-2] H23, Dec. 21, 2015 ("Robinson Aff"). Robinson highlights the escape of six prisoners
that occurred when Virginia's death row was located at Mecklenburg Correctional Center, and he
attributes the lack of similar incidents at SISP to the policies and regulations that were in place
until 2015.17 Id. fl 16-20. Similarly, Zook describes the murder of two inmates by two others
during group recreation at a Florida prison where he worked as "illustrative of what can happen
when death-row offenders are allowed to congregate in larger groups." Zook Aff. ^| 18. Clarke
avers that he too is "ever-cognizant. . . of the security risk posed by convicted murderers who
are awaiting the imposition of a death sentence" and particularly of the "heightened risk of
attempted escape" among that population. Clarke Aff. ^ 63. In addition to justifying the pre-2015 conditions as necessary security precautions,
defendants also contend that those conditions had no harmful effects on plaintiffs. In multiple affidavits submitted by defendants, VDOC officials aver that they have not witnessed any
Virginia's death row inmates were previously housed at the Mecklenburg Correctional Center. Robinson Aff. U 16. In 1984, six death row inmates escaped from that correctional center, and some of those escapees were not caught for several weeks. Id Other incidents occurred while the unit was located at the Mecklenburg facility, including violent encounters between inmates, as well as one inmate's suicide. Id. K18. Virginia moved its death row unit from Mecklenburg to SISP in August 1998, and "virtually no serious security-related incidents" have occurred on death row since the move, with one exception being a former inmate's unsuccessful attempt "to set his cell on fire prior to his execution in 2009." Id. ^j 19.

"mental deterioration" or other mental health problems among plaintiffs during their incarceration under the pre-2015 conditions. See, e^, Zook Aff. U19.
Despite defendants' belief that the pre-litigation conditions were not harmful to plaintiffs and were necessary to ensure the facility's security, Clarke began considering changing some of those conditions as early as 2011. Clarke Aff. *\ 57.18 Clarke avers that he chose not to move
forward with any changes while the Prieto litigation was pending, but then decided in mid-2014 to implement changes and continued in that effort even after the instant litigation began on November 20, 2014. Id U58. Zook and Clarke eventually approved a number of interim rules and regulations for death row in August 2015, id. ^ 59, and then moved to staythese proceedings for 90 days while they implemented the new regulations, with the additional request that any remaining issues at the end of those 90 days be referred for mediation. Defs.' Mot. for Stay & to Refer Remaining Issues to Mediation [Dkt. No. 84], Aug. 10, 2015. The plaintiffs did not oppose
the motion, and the Court granted the requested relief. Order [Dkt. No. 88], Aug. 12, 2015. The interim regulations provided for a number of significant changes to plaintiffs'
conditions of confinement. See generally, Mem. in Supp. of Defs.' Mot. for Stay & to Refer Remaining Issues to Mediation [hereinafter Mot. for Stay], Ex. 1, Aff. of Harold Clarke [hereinafter Clarke Aff. 2], Ex. A, Interim Offender Rules and Regulations - Death Row [Dkt. No. 85-1] Aug. 10, 2015 ("Interim Regulations"). With respect to visitation, the interim regulations allowed death row inmates to "have contact visits with immediate family members" every Friday for 1 hour and 30 minutes," and "non-contact visits with any approved visitor on
1o
Clarke avers that beginning in 2011 and continuing through the present litigation, he "held numerous discussions with [his] staff regarding whether and how .. . modifications should occur." Clarke Aff. 1[ 57.
10

Saturdays, Sundays, and holidays for 1hour and 30 minutes." Id at 3. The interim regulations
allowed inmates to shower seven days a week, for fifteen minutes each time, and inmates were
permitted to engage in daily congregate recreation within the death row pod "with amaximum of
three other offenders" for at least an hour at a time. Id at 4.
To implement this "in-pod" recreation, the VDOC began "constructing amulti-purpose day room" in the death row pod with tables on which inmates could play games, several telephones and atelevision, and aJ-PAY kiosk from which inmates could send email and purchase books and movies. Clarke Aff. 21 11. The VDOC planned to "us[e] the day room for
congregate religious services, behavioral programming, and additional employment opportunities" for the death row inmates. Id. With respect to these additional employment opportunities, the VDOC immediately created an additional job cleaning the pod and showers,
and Clarke averred that the VDOC was workingto create anotherjob that would involve "wrapping sporks for offender meals." Id. H 12.
In addition to the new opportunities for in-pod recreation and congregation, the interim regulations provided for increased outdoor recreation, permitting inmates to engage "in outdoor recreation five days per week for a minimum of 1 hour and 30 minutes per day." Interim Regulations 4. Although the regulations themselves did not refer to congregate outdoor
recreation, Clarke averred that the VDOC was in the process of constructing a "covered outdoor recreation yard specifically for Death Row offenders," which would be "separated into two sections, each" with "a basketball court and an area for stationary exercise equipment," and would allow for a maximum of four death row inmates to congregate in each section of the yard, unrestrained, "for a minimum of one hour and thirty (30) minutes per day, five (5) days per week." Clarke Aff. 2^10.
1I

Following the promulgation and partial implementation of these interim regulations, the parties participated in asettlement conference, but failed to resolve the action. Joint Status Report [Dkt. No. 102], Nov. 13, 2015. Accordingly, the parties filed the pending cross-motions for summary judgment. Since the filing ofthose motions, the parties have provided multiple updates regarding the progress of the policy changes. These submissions demonstrate that
defendants have finalized the interim regulations and have implemented most, if not all, ofthe
promised changes, at significant expense.
Specifically, Zook approved finalizing the interim regulations as Operating Procedure 425.A ("OP 425.A") in May 2016, and OP 425.A was signed into effect by the VDOC's Regional Operations Chief on June 2, 2016. Resp., Ex. A, Aff. ofDavid Zook [Dkt. No. 161-1] %20, June 3, 2016 ("Zook Aff. 3"); see also Resp., Ex. 8, Va. Dep't ofCorr. Operating
Procedure 425.A [Dkt. No. 158], June 3, 2016 ("OP 425.A"). Pursuant to OP 425.A, death row
inmates who are in compliance with grooming and other standards "will receive at least 1 lA
hours of outside recreation, 5 days a week and 1 hour of [in-]pod recreation per day." OP
425.A.V.C.1.19 During in-pod recreation, groups of up to four inmates may use the newly
constructed day room to "watch television, play board games, and use the telephone" and [J-
PAY] kiosk." OP 425.A.V.C.4.h.21
11 Inmates who are not in compliance with the grooming standards and standards for cell
maintenance will still receive outdoor recreation time, but only in the individual pens used before the construction of the outdoor facility. OP 425.A.V.C.2. 20 Specifically, inmates are allowed "routine phone calls," each of which "has a 20 minute time
limit." OP 425.A.IV.C.9.
Zook previously averred that a specific group behavioral programtitled "Thinking for a Change" would become available to death row inmates starting the week of February 8, 2016 and would take place in the day room. Mot. to Supplement the Record, Ex. 2, Aff. of David Zook [Dkt. No. 139-2] 1 11,Feb. 10, 2016 ("Zook Aff. 2"). Although defendants' most recent
12

Inmates may have visitation with immediate family members as well as with one non-
family member. OP 425.A.VII.D.1. Contact visitation with approved visitors is permitted for one
hour and 30 minutes every Friday, and non-contact visitation occurs on weekends and holidays.
OP 425.A.VII.D.2-3. Inmates may also request extended visits, which requests the Assistant Warden can evaluate and approve "on a case-by-case basis." OP 425.A.VII.D.5. Although OP 425.A is now the official operating procedure for death row, its terms require the VDOC to
review the procedure on an annual basis and to "re-write itno later than three years after [its]
effective date." OP 425.A.X.
Defendants have further shown that VDOC has spent a total of $1,974,995.00 on the
planning and construction ofthe physical changes made to death row22 and has set aside another
$200,000.00 for anticipated "design and permitting fees, as well as construction of an indoor divider wall adjacent to the attorney visitation room" on death row. Zook Aff. 3 ffl| 22-23. One of the more significant physical changes involved the construction of the outdoor recreation facility,
which "passed its final inspection and permitting on Friday, January 8, 2016," and was first used
by inmates on Tuesday, January 12, 2016. Id ^j 17. Photographs submitted under seal by
defendants demonstrate that the facility is completely enclosed in wire mesh, with additional
submission to the Court does not reference this programming, information regarding the program was not requested. Moreover, because plaintiffs concede that the current conditions meet constitutional standards, it is irrelevant whether all the promised changes have been
implemented.
Zook avers that this sum "does not include miscellaneous facility expenditures, such as the cost of the basketball goals and the television" in the dayroom. Zook Aff. 3 ^| 22. ' During oral argument on the summaryjudgment motions, defendants' counsel represented that the inmates were given an extra hour and a half of recreation in the day room when snow had
made outdoor recreation time undesirable. Tr. of Mots. Hr'g [Dkt. No. 131] 10:13-11:13, Feb 8
2016.
13

roofing on the top, but that itallows some natural light to come in through the sides. See Resp., Exs. 1-7 [Dkt. No. 158], June 3, 2016. The facility is divided in half by another wall ofwire mesh, and each halfcontains a basketball hoop, a table with four seats, and a piece of stationary exercise equipment.24 Id Death row inmates are permitted to congregate in small groups in each halfof the facility, and although the finalized regulations state only that outdoor recreation occurs "at least" five days a week, earlier submissions by defendants indicate that it may be
available up to seven days a week. See Clarke Aff. ]\60. Plaintiffs do not contest the accuracy of these photographs; however, they submitted an
affidavit in which one of plaintiffs' attorneys aversthat he was told by an unnamed prison official that inmates housed in a building adjacent to the death row pod will also be permitted to use the outdoor facility. Pis.' Reply to Defs.' Resp. to Ct.'s Order of May 20, 2016 [hereinafter Pis.' Reply], Ex. 1, Deck of Steven D. Rosenfield [Dkt. No. 163-1] ]\4, June 15, 2016 ("Rosenfield Decl.").25
III. DISCUSSION
Plaintiffs concede that the changes implemented by the VDOC addressed their concerns, and they do not contend that the current conditions of confinement at SISP violate the Eighth Amendment. Instead, plaintiffs move for summary judgment based on their argument that the previous conditions were unconstitutional. Pis.' Br. 2. The only relief they seek is an injunction
barring defendants from reinstating those conditions, which they argue is not only necessary but
The exercise equipment "can be used for chin-ups and similar physical exercises." Zook Aff. 3
17.
"' Rosenfeld also avers that he found the outdoor facility to be "rather dark, although ambient light allowed some lighting through the sides," but that he was later informed by his clients "that lighting has been added to the outdoor facility." Rosenfield Decl. %5.
14

is also narrowly drawn and the least intrusive means available, as required by the PLRA. Id. at 27-29; see also 18 U.S.C. § 3626(a)(1)(A). Defendants argue that they should be awarded summary judgment because the current conditions under which plaintiffs are housed do not violate the Constitution, that it is unnecessary to decide the constitutionality of the previous conditions, which they maintain were in fact constitutional, and that an injunction is not appropriate. Defs.' Br. 18-19, 22.
A. Standard of Review
A party is entitled to summary judgment if the record shows that "there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). ). In ruling on cross-motions for summary judgment, the court must evaluate "each motion separately on its own merits 'to determine whether either of the parties deserves judgment as a matter of law.'" Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003) (quoting Philip Morris Inc. v. Harshbarger, 122 F.3d 58, 62 n.4 (1st Cir. 1997)). Although the court "must draw any permissible inference from the underlying facts in the light most favorable to the party opposing the motion," any inferences drawn "must, in every case, fall
within the range of reasonable probability and not be so tenuous as to amount to speculation or conjecture." Thompson Everett. Inc. v. Nat'l Cable Adver.. L.P.. 57 F.3d 1317, 1323 (4th Cir. 1995) (quoting Tuck v. Henkel Corp.. 973 F.2d 371, 374 (4th Cir. 1992)) (internal quotation marks omitted). Moreover, "[t]he mere existenceof a scintilla of evidence in support of the [nonmovant's] position will be insufficient" to defeat a summary judgment motion; instead, "there must be evidence on which thejury could reasonably find for the [nonmovant]." Anderson
v. Liberty Lobby. Inc.. 477 U.S. 242, 252 (1986); see also Am. Arms IntT v. Herbert. 563 F.3d
78, 82 (4th Cir. 2009) ("[A] nonmovant cannot defeat summary judgment with merely a scintilla
15

of evidence."). Similarly, "[t]he mere existence of some alleged factual dispute" cannot defeat a motion for summary judgment; the dispute must be both "material" and "genuine," meaning that it "might affect the outcome of the suit under the governing law." Hooven-Lewis v. Caldera, 249
F.3d 259, 265 (4th Cir. 2001) (emphasis omitted).
B. Mootness
The parties primarily focus on the questions of whether the pre-2015 conditions were unconstitutional and whether injunctive relief should issue, but an initial matter to be considered, and one which the Court deems determinative, is whether these questions have been mooted by
the VDOC's voluntary change in policies. Plaintiffs concede that the "VDOC's voluntary
adoption of the Interim Regulations has already brought VDOC into compliance," and they seek
only an injunction barring the defendants from returning to the earlier policies. Pis.' Br. 28.
Defendants respond that "at this juncture" they are not seeking "outright dismissal on the grounds of mootness" because doing so would require them "to shoulder" the "heavy burden" established by the Fourth Circuit in Wall v. Wade, 741 F.3d 492 (4th Cir. 2014). Defs.' Opp'n 24 n.54 (internal quotation marks omitted). Instead, defendants invoke the doctrine ofconstitutional
avoidance to argue that injunctive relief is unnecessary and that the injunction sought by plaintiffs is not narrowly tailored as required by the PLRA. Defs.' Br. 22-23.
Although the doctrine of constitutional avoidance is not applicable here, defendants'
contentions that injunctive relief is unnecessary and that the Court should abstain from
26 Under the doctrine of constitutional avoidance, federal courts should avoid deciding questions
of constitutional law when there are uncertain questions of state law that would require "guesswork," Spector Motor Scrv. v. McLaughlin. 323 U.S. 101, 105 (1944), or when state law
or a statute provides an alternative basis on which to decide the case, making adjudication of the constitutional question avoidable. See Ashwander v. Tenn. Valley Auth.. 297 U.S. 288, 347 (1936) (Brandeis, J., concurring); see also F.C.C. v. Fox Television Stations. Inc.. 556 U.S. 502,
16

determining the constitutionality of the previous conditions are, at their core, arguments about mootness. It is apparent to the Court that the issues raised by plaintiffs' Complaint have in fact
been mooted by the changes voluntarily implemented by defendants and that it is unnecessary and inappropriate for the Court to reach the merits ofthe constitutional dispute. The relevant case law cited by both parties supports this conclusion. For example, the defendants in Wall, who were also VDOC officials, argued that their voluntary cessation of a policy prohibiting inmates
who did not possess certain religious materials from participating in Ramadan observances mooted the inmate plaintiffs claim that the practice violated the Religious Land Use and
Institutionalized Persons Act ("RLUIPA"). Wall, 741 F.3d at 496-97. The allegedly wrongful policy had required inmates "to provide some physical indicia of Islamic faith" to be able to participate in Ramadan, and the new policy allowed for participation in Ramadan if an inmate could show that he or she had "in the past borrowed religious materials" from the facility's chaplain. Id. at 494-96. Accordingly, the "new policy very closely mirrored the old policy." See Smith v. United States Congress. No. 3:12CV45, 2015 WL 1011545, at *9 (E.D. Va. Mar. 6, 2015).
The Wall court held that official defendants seeking to establish mootness after they voluntarily end a challenged practice must demonstrate that it is "absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur," and found that the
defendants failed to meet their "heavy burden" in making that showing because they had not produced any evidence demonstrating that the allegedly wrongful practice had actually ended "once and for all." Wall. 741 F.3d at 497 (quoting Friends of the Earth. Inc. v. Laidlaw Envtl.
516 (2009) ("The so-called canon of constitutional avoidance is an interpretive tool, counseling that ambiguous statutory language be construed to avoid serious constitutional doubts.").
Defendants fail to demonstrate how this doctrine applies in the context of this litigation.
17

Servs.. Inc., 528 U.S. 167, 189 (2000)) (internal quotation marks omitted). The court also
emphasized that "when adefendant retains the authority and capacity to repeat an alleged harm, aplaintiffs claims should not be dismissed as moot," and found that nothing would prevent the
VDOC from reinstating the Ramadan policy, particularly because the use of three different
policies over the course of several years made it doubtful "that the new policy [would] remain in
place for long." Id (citations omitted).
Similarly, in Prison Legal News v. Stolle, No. 2:13CV424, 2015 WL 1487190 (E.D. Va. Mar. 31, 2015), acase cited by plaintiffs, the defendants, which included the Sheriff for Virginia
Beach, Virginia and employees ofthe Virginia Beach Sheriffs Office ("VBSO"), argued that
because the VBSO had changed its policiesregarding sexually explicit publications sent to prisoners at the Virginia Beach Correctional Center ("VBCC"), the publisher plaintiffs claim that previous publication policies were unconstitutional had become moot. Id. at *1, 4. The court
disagreed, citing Wall's description of the "heavy burden" on the defendants, and pointing to the defendants' failure to "acknowledge^ that the prior VBSO policies [were] unconstitutional" or "at least constitutionally suspect, and therefore, [would] never be reimplemented by the VBSO." Id. at *4. The court found that because the defendants failed to identify "any legal or practical barrier preventing them from readopting the disputed polices" and similarly "failed to even offer a bald conclusory pledge not to return to such policies," they had failed to demonstrate that the plaintiffs claims were moot. Id.
The situation at bar is distinct from those involved in Wall and Prison Legal News.
Although defendants here decline to explicitly acknowledge that the pre-2015 conditions of confinement were unconstitutional or to offer explicit guarantees that the VDOC will not return
to those conditions, the policies at issue in the instant litigation and the actions taken by
18

defendants are easily distinguished from those at issue in Watt and Prison Legal News. Unlike the prison officials in those cases, defendants here have made significant, costly, and concrete
changes to numerous facets ofplaintiffs' conditions of confinement, including not just policy and
procedural changes, but also physical changes to the death row facilities.
The policies at issue in Wall and Prison Legal News affected relatively limited aspects of
inmate life: in Wall, participation in aspecific religious holiday, and in Prison Legal News, the
type ofpublications that prisoners could receive. In contrast, the VDOC's new regulations for
death row inmates reach almost every facet of inmate life. In particular, the new regulations have changed the quantity and quality of plaintiffs' recreational time and visiting hours, allowed for
more time spent outside of plaintiffs' cells, and supplied new opportunities for interaction with
other inmates. Moreover, defendants have constructed new physical facilities at SISP for plaintiffs' use. These policies and structural changes are not only broad-ranging, but were and are extremely costly to implement. Defendants have spent nearly $2 million on planning and construction, including the building of an outdoor recreation yard and indoor recreation room,
both of which include costly pieces ofequipment and technology.27 Such physical changes and
monetary investments are strong indicators that defendants will not revert to the previous conditions. As defendants contend, "|s]tate agencies do not spend $1.6 million on new construction simply as a matter of'litigation strategy.'" Deft.' Opp'n 24 n.54. Although
plaintiffs correctly argue that "[constitutional rights cannot be bought and sold," Pis.' Reply 4,
That the outdoor facility may be used at times by other SISP prisoners does not undermine or conflict with defendants' intention to provide it for use by death row inmates for at least one
hour and 30 minutes, five days aweek. Moreover, defendants aver that the day room was constructed inside the death row pod because they "have no plans to limit or otherwise revoke"
the policy permitting its use by prisoners who are in compliance with VDOC policies. Zook Aff.
19

defendants' monetary outlay is astrong indicator that defendants intend to maintain their new
policies, which plaintiffs have admitted meet constitutional standards.
Furthermore, these changes were implemented without court intervention and were under
consideration before this litigation even began. Clarke's unrebutted affidavit demonstrates that
he began considering changing the previous VDOC policies as early as 2011, before either the
Prieto lawsuit or this lawsuit began. Clarke Aff. 11 57. There is no basis in this record un
questioning Clarke's sworn statement to that effect. Moreover, Clarke and the other VDOC
officials continued implementing changes after plaintiffs' Complaint was filed, without any court
order requiring that they do so. Defendants steadily advanced the progress ofthese changes,
ultimately finalizing the new and undisputedly constitutional regulations in June 2016. These
actions serve as an implicitacknowledgement that the earlier conditions were undesirable, if not
unconstitutional.
Plaintiffs counter that the timing of the changes is suspicious and shows that the
defendants were only motivated by this litigation, and further argue that even the official
finalization of the new regulations is insufficient to ensure that defendants will not revert to the
earlier conditions. Pis.' Reply 2-3. That the new regulations were only recently finalized does
After filing their reply to defendants' last supplemental report, plaintiffs filed materials they received as a result of their request under Virginia's Freedom of Information Act. See Mot. for Leave to Supplement Pis.' Resp. to Defs.' Evidentiary Submission [hereinafter Mot. to Supplement], Ex. A, Pis.' Supplemental Evidentiary Submission [Dkt. No. 164-1], June, 23, 2016; see also Order [Dkt. No. 165], June 23, 2016 (granting plaintiffs' Motion for Leave to Supplement and making the supplementary submission part of the record). Plaintiffs' submission
relates entirely to the construction of the outdoor facility, and largely consists ofemails sentby VDOC staff to other state officials and employees, in addition to an approved "Emergency Declaration Request Form" and a Fire Marshal report. UL Plaintiffs contend that these materials "confirm[] the wholly reactive nature ofthe Death Row improvements" and demonstrate that the changes made were not voluntary, Mot. to Supplement 1-2; however, these materials do not
carry such persuasive weight. Defendants' apparent rush to complete the outdoor facility does
20

not cast doubt on their voluntariness; rather, it demonstrates that defendants engaged in a
deliberative process to ensure that the new regulations were both workable and firmly established. Meaningful change comes slowly within bureaucracy, particularly comprehensive
change of the kind made by defendants, and amore limited or half-hearted approach like the
ones taken in Wall or Prison Legal News would be far more concerning.
Furthermore, neither the frequent turnover in prison officials nor the new regulations-
provision for annual review and arevision in three years shows that these changes will be easily
or casually reversed. Plaintiffs emphasize that OP 425.A provides that it will be revised in three
years, id at 4; however, three years is asignificant length oftime, particularly in light of the
required time limit onthe injunction plaintiffs seek under § 3626(a) ofthe PLRA, which
"establishes [the] standards for the entry and termination of prospective relief in civil actions
challenging prison conditions." Miller v. French. 530 U.S. 327, 331 (2000); see also 18 U.S.C. § 3626(a). Although neither party addressed this issue or seemed aware of it when the Court
raised the issue during oral argument, see Tr. of Mots. Flr'ng [Dkt. No. 131] 5:22-6:11, Feb. 8, 2016, § 3626(b)(1) of the PLRA provides that "[i]n any civil action with respect to prison
conditions in which prospective relief is ordered, such relief shall be terminable upon the motion
ofany party or intervener" beginning two years from "the date the court granted or approved the prospective relief," 18 U.S.C. §3626(b)(l)(A)(i), unless "the court makes written findings based
not contradict Clarke's sworn statement that he had been considering making changes for years
nor does it negate the comprehensive changes made to many ofthe VDOC's death row
Srefe^renSceSd i^n thte^supSpl"emefnTtaryVmiSaittaelrii°anl,sP.OMlidoereSotv0erC,°tnhgereVgDatOe Cra'staipopnar-enntounrgeenocfywinhdicihcaateres
row.
21

on the record that prospective relief remains necessary to correct acurrent and ongoing violation of the Federal right" and meets the other requirements for injunctive relief under the PLRA. 18 U.S.C. §3626(b)(3). Even if an ongoing constitutional violation is found such that the
prospective relief needs to remain in effect, after one year the relief again becomes terminable
upon aparty or intervener's motion. 18 U.S.C. §3626(b)(l)(A)(ii).29 Accordingly, even if plaintiffs received the requested injunction, and the current,
undisputedly constitutional conditions remained in place (or continued to improve), any party or intervener could move to terminate that injunction after two years. See, e^, Morales Feliciano v.
Rullan, 378 F.3d 42, 52 (1st Cir. 2004) ("Upon amotion to terminate prospective injunctive
relief under the PLRA, acourt may continue the relief only ifit supportably finds that there are
ongoing constitutional violations."), cert, denied, Rullan v. Feliciano, 543 U.S. 1054 (2005);
Cason v. Seeking, 231 F.3d 777, 780 (11th Cir. 2000) ("[T]he PLRA limits a court's authority to continue to enforce previously entered prospective relief in prison litigation reform cases" by
"establishing] specified time frames under which prospective relief is terminable upon motion of a party."). The three-year revision requirement in OP 425.A is therefore a lengthy period of time in the context of prison reform litigation. The turnover in SISP and VDOC leadership occurs on a similar timeframe: seven individuals have served as the warden at SISP since 2005,
and two individuals have served as director of the VDOC during that time. Pis.' Br. 26. Although plaintiffs contend that this turnover leads to "instability" in policies and regulations at SISP, id..
2l) Parties may also agree "to terminate or modify relief before the two year period expires. 1
U.S.C. § 3626(b)(1)(B).
22

it is no greater instability than that permitted under the PLRA.30 Plaintiffs' arguments, therefore,
fail to overcome the conclusion that this action is moot.
IV. CONCLUSION
Because the improvements voluntarily made by defendants have rendered plaintiffs' claims moot, it would be inappropriate under the specific facts of this action to reach the merits
ofplaintiffs' claims or to invoke the injunction authority ofthe Court. Accordingly, plaintiffs'
Motion for Summary Judgment will be denied as moot and defendants' Motion for Summary
Judgment will be granted by an appropriate Order to be issued with this Memorandum Opinion.
Entered this !fc_ day ofJuly, 2016.
Alexandria, Virginia

rr/jm
Leonie M. Brinkema

• 1: '.' :

United States District Judge

The same is true with respect to plaintiffs' argument that because the VDOC is not subject to Virginia's Administrative Process Act, it may "revoke the regulations for any reason and at any time without procedural due process or notice and comment." Pis.' Reply 3.
23

 
 Case 1:14-cv-01588-LMB-IDD Document 174 Filed 03/24/17 Page 1 of 16 PageID# 3131

PUBLISHED UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-7044
THOMAS ALEXANDER PORTER; ANTHONY BERNARD JUNIPER; MARK LAWLOR; RICKY JOVAN GRAY,
Plaintiffs – Appellants, and IVAN TELEGUZ,
Plaintiff, v. HAROLD W. CLARKE; DAVID ZOOK,
Defendants – Appellees. --------------------------------------THE AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF VIRGINIA, INC.; THE RUTHERFORD INSTITUTE,
Amici Supporting Appellants.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Leonie M. Brinkema, District Judge. (1:14−cv−01588−LMB−IDD)

Argued: January 25, 2017

Decided: March 24, 2017

Before NIEMEYER, TRAXLER, and WYNN, Circuit Judges.

Case 1:14-cv-01588-LMB-IDD Document 174 Filed 03/24/17 Page 2 of 16 PageID# 3132
Reversed and remanded by published opinion. Judge Wynn wrote the opinion, in which Judge Niemeyer and Judge Traxler joined. ARGUED: Kathryn Marshall Ali, HOGAN LOVELLS US LLP, Washington, D.C.; Victor M. Glasberg, VICTOR M. GLASBERG & ASSOCIATES, Alexandria, Virginia, for Appellants. Margaret Hoehl O’Shea, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellees. ON BRIEF: Elizabeth C. Lockwood, W. David Maxwell, Ryan Stephenson, Washington, D.C., Parker D. Thomson, HOGAN LOVELLS US LLP, Miami, Florida; Steven D. Rosenfield, Jeffrey E. Fogel, Charlottesville, Virginia, for Appellants. Mark R. Herring, Attorney General of Virginia, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellees. David W. DeBruin, Carrie F. Apfel, Kelly M. Morrison, Washington, D.C., Jeffrey A. Atteberry, JENNER & BLOCK, LLP, Los Angeles, California, for Amici The American Civil Liberties Union Foundation of Virginia, Inc. and The Rutherford Institute. Hope R. Amezquita, AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF VIRGINIA, INC., Richmond, Virginia, for Amicus The American Civil Liberties Union Foundation of Virginia, Inc. John W. Whitehead, Doug R. McKusick, THE RUTHERFORD INSTITUTE, Charlottesville, Virginia, for Amicus The Rutherford Institute.
2

Case 1:14-cv-01588-LMB-IDD Document 174 Filed 03/24/17 Page 3 of 16 PageID# 3133
WYNN, Circuit Judge: Plaintiffs Thomas Porter, Anthony Juniper, and Mark Lawlor1 (collectively,
“Plaintiffs”)—three inmates on Virginia’s death row—alleged that their conditions of confinement amounted to cruel and unusual punishment in violation of the Eighth Amendment. After Plaintiffs filed their complaint, Defendants Harold Clarke, Director of the Virginia Department of Corrections (“Director Clarke”), and Darren Zook, Warden of Sussex I State Prison (“Warden Zook,” and collectively with Director Clarke, “Defendants”), substantially changed the policies governing the conditions of confinement for inmates on Virginia’s death row, addressing virtually all of the issues raised in Plaintiffs’ complaint. The district court concluded that Defendants’ changes to the challenged policies mooted Plaintiffs’ action.
But as Plaintiffs contend, Defendants’ voluntary cessation of the challenged practice has not yet mooted this action because Defendants failed to meet the Supreme Court’s requirement of showing that “it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190 (2000). Indeed, Defendants repeatedly have refused to rule out a return to the challenged policies. Accordingly, we must agree with Plaintiffs that the district court erred in dismissing Plaintiffs’ action as moot.
1 Ricky Jovan Gray, another plaintiff involved in this appeal, was executed by the State of Virginia on January 18, 2017, rendering his appeal moot.
3

Case 1:14-cv-01588-LMB-IDD Document 174 Filed 03/24/17 Page 4 of 16 PageID# 3134
I. On November 20, 2014, the date Plaintiffs filed their complaint, two Corrections Department policies governed the conditions of confinement for inmates on Virginia’s death row: Local Operating Procedure 460.A, entitled “Security of Offenders Under the Sentence of Death,” effective March 1, 2010, and “Institutional Rules and Regulations for Offenders – Death Row,” effective February 3, 2010. J.A. 709. Under the two policies, Plaintiffs, as death row inmates, “spen[t] almost all of [their] time alone”— approximately twenty-three hours per day—in seventy-one-square-foot prison cells furnished with only a steel bed, a small desk, and a single fixture that doubled as a commode and a sink. J.A. 20. The policies required separation of each Plaintiff from other death row inmates by at least one cell. Although the Corrections Department’s policies permitted Plaintiffs to receive visitors, visitation opportunities were limited to non-contact visits, with Plaintiffs and their visitors separated at all times by a plexiglass partition. Death row inmates could request contact visitation with immediate family members only under unspecified “extreme circumstances,” with the warden maintaining unconstrained discretion to grant or deny such requests. Porter v. Clarke, No. 1:14–cv– 1588, 2016 WL 3766301, at *4 (E.D. Va. July 8, 2016) (quoting Local Operating Procedure 460.A); see also J.A. 915. The policies further barred Plaintiffs from “join[ing] general population inmates for vocational, educational, or behavioral programming, []or . . . attend[ing] group religious services.” J.A. 21. Also unlike the general prison population, Plaintiffs were “not allowed to use the gymnasium or prison yard, nor [were they] given an opportunity
4

Case 1:14-cv-01588-LMB-IDD Document 174 Filed 03/24/17 Page 5 of 16 PageID# 3135
for [indoor] recreation.” J.A. 20. And although Corrections Department policy allowed Plaintiffs one hour of outdoor recreation approximately five days a week, Plaintiffs were limited to exercising in an outdoor cell—similar in size to their indoor cells—with a concrete floor and no exercise equipment.
On August 6, 2015, nearly a year after Plaintiffs filed their complaint, Warden Zook approved interim rules and regulations relaxing the conditions of confinement for inmates on death row. The interim rules and regulations allowed Plaintiffs: (1) 1.5 hours of contact visitation with immediate family members, once a week; (2) 1.5 hours of noncontact visitation with approved visitors on weekends and holidays; (3) a minimum of 1.5 hours of outdoor recreation, five days per week; (4) at least one hour of indoor recreation with up to three other inmates, daily; and (5) a fifteen-minute shower, daily. The Corrections Department also constructed a new outdoor recreation yard for death row inmates to allow for unrestrained, outdoor group recreation, as well as a multipurpose dayroom to allow death row inmates to engage in indoor group recreation activities and religious services, behavioral programming, and employment opportunities. The Corrections Department spent approximately $2 million planning, designing, and constructing the new facilities.
Following Warden Zook’s approval of the interim rules and regulations, Defendants moved to stay proceedings in the district court for ninety days pending implementation of the interim rules and regulations and to refer any remaining disagreements to a magistrate judge for mediation. The district court granted the unopposed motion on August 12, 2015. On November 13, 2015, after partial
5

Case 1:14-cv-01588-LMB-IDD Document 174 Filed 03/24/17 Page 6 of 16 PageID# 3136
implementation of the interim rules and regulations, the parties filed a joint status report informing the court that they had participated in settlement proceedings but were ultimately unable to resolve the action.
On December 21, 2015, Plaintiffs and Defendants filed cross-motions for summary judgment. Defendants’ motion did not argue that the change in policies warranted or required dismissal of Plaintiffs’ action as moot. On the contrary, Defendants stated that they were not seeking “outright dismissal on the grounds of mootness” because of the “heavy burden” a defendant must satisfy to demonstrate that its voluntary cessation of a challenged policy rendered an action contesting that policy moot. J.A. 1082–83; see also Wall v. Wade, 741 F.3d 492, 497 (4th Cir. 2014).
Nevertheless, during a hearing on the motions on January 29, 2016, the district court observed that “it looks as though most of the issues [in the case] have been essentially resolved.” J.A. 1158. Plaintiffs responded that they were not challenging their conditions of confinement under the interim rules and regulations, “so the only challenge that’s before the Court relates to the conditions prior to the implementation of the August 2015 interim regulations.” J.A. 1158–59. To that end, Plaintiffs represented that they were seeking “an injunction that would require [Defendants] to essentially keep these improvements in place unless there is a specific reason as to a particular inmate or . . . an institutional reason why they couldn’t stay in place,” as well as a declaration that the conditions on death row prior to the August 2015 policy changes constituted cruel and unusual punishment in violation of the Eighth Amendment. J.A. 1159.
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The court then asked the parties why, given the policy changes, they had been unable to agree to a consent decree that would ensure the policy changes remained in place going forward. Plaintiffs informed the court that the parties had failed to come to an agreement because Plaintiffs had not “received . . . reasonable assurances that any of [the revised policies] will remain in place” and that, even if the policies were kept “in place, . . . there’s no guarantee that those policies will be followed in practice, and . . . there’s nothing stopping the government from revoking those policies immediately.” J.A. 1160–61. Defendants concurred with Plaintiffs’ explanation as to why the parties had not been able to reach an agreement, stating that the Corrections Department “didn’t want anything in place that would necessarily bind [them] to act in one manner or another.” J.A. 1162. Defendants’ counsel further explained:
I don’t think the [Corrections Department] has any intent whatsoever to go back to the way things were, but the department can’t be blind to the fact that things might change in the future. If there’s an attempted escape next month, the department might need to temporarily go back on lockdown status so that they could assess why that happened and fix the circumstances, and having the consent decree in place would hamper their ability to go and make these security considerations. J.A. 1164–65. On May 20, 2016, the district court ordered Defendants to “provide an update as to the status of the regulations on death row, specifically explaining whether the interim regulations have been finalized.” J.A. 1196. Two weeks later, on June 3, 2016, Defendants filed an affidavit from Warden Zook affirming that a new operating procedure had been signed into effect on June 2, 2016, replacing former Local Operating Procedure 460.A and the August 2015 interim rules and regulations previously in effect.
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Under the new policy, Operating Procedure 425.A, death row inmates are afforded: (1) at least 1.5 hours of outdoor recreation, five days per week; (2) at least one hour of indoor recreation in groups of up to four inmates, daily; (3) showers for a maximum of fifteen minutes; (4) 1.5 hours of contact visitation with immediate family members and one approved non-family member, once a week; (5) non-contact visitation on weekends and holidays; and (6) the opportunity to request extended visitation periods, to be granted by the assistant warden on a case-by-case basis. Operating Procedure 425.A also requires the Corrections Department to review the policy annually and rewrite it no later than three years after the effective date.
On July 8, 2016, the district court issued a memorandum opinion holding that “the improvements voluntarily made by defendants have rendered plaintiffs’ claims moot.” Porter, 2016 WL 3766301, at *11. In reaching this conclusion, the district court found that “defendants here decline to explicitly acknowledge that the pre-2015 conditions of confinement were unconstitutional or to offer explicit guarantees that the [Corrections Department] will not return to those conditions,” id. at *9, but nonetheless concluded that the challenged practices “‘could not reasonably be expected to recur’” in light of Defendants’ “policy and procedural changes[ as well as] physical changes to the death row facilities,” see id. (quoting Wall, 741 F.3d at 497). In an accompanying order, the court granted Defendants’ motion for summary judgment, denied Plaintiffs’ summary judgment motion as moot, and entered judgment in favor of Defendants. Plaintiffs timely appealed.
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II. The principal question on appeal is whether the district court erred in holding that the changes to Plaintiffs’ conditions of confinement resulting from the revisions to the Corrections Department’s policies rendered Plaintiffs’ action moot.2 When, as here, the relevant jurisdictional facts are not in dispute, we review a district court’s dismissal based on mootness de novo. See S.C. Coastal Conservation League v. U.S. Army Corps of Eng’rs, 789 F.3d 475, 482 (4th Cir. 2015); Stein v. Buccaneers Ltd., 772 F.3d 698, 701 (11th Cir. 2014) (“We review de novo the legal issue of whether, based on the facts, a case is moot. Here the facts are undisputed, so our review of the only matter at issue— the legal effect of the undisputed facts—is de novo.”) “[T]he doctrine of mootness constitutes a part of the constitutional limits of federal court jurisdiction,” Simmons v. United Mortg. & Loan Inv., LLC, 634 F.3d 754, 763 (4th Cir. 2011) (alteration in original) (internal quotation marks omitted) (quoting United States v. Hardy, 545 F.3d 280, 283 (4th Cir. 2008)), which extends only to actual cases or controversies, U.S. Const. art. III, § 2. When a case or controversy ceases to exist— either due to a change in the facts or the law—“the litigation is moot, and the court’s subject matter jurisdiction ceases to exist also.” S.C. Coastal Conservation League, 789
2 On appeal, Plaintiffs also argue that the district court’s failure to notify the parties that it was intending to decide the case on mootness grounds sua sponte violated Federal Rule of Civil Procedure 56(f)(2), which states that “[a]fter giving notice and a reasonable time to respond, the court may . . . grant [a summary judgment] motion on grounds not raised by a party.” Because we conclude that the district court erred in dismissing the action as moot, we need not—and thus do not—decide whether the district court violated Rule 56(f).
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F.3d at 482. Put differently, “a case is moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Powell v. McCormack, 395 U.S. 486, 496 (1969)); see also Arizonans for Official English v. Arizona, 520 U.S. 43, 68 n.22 (1997) (“Mootness has been described as ‘the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).’” (quoting U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 397 (1980))).
The district court concluded that the Corrections Department’s revisions to the policies governing the conditions of confinement of death row inmates rendered Plaintiffs’ claim moot because the revisions addressed all of the issues raised in Plaintiffs’ complaint. Porter, 2016 WL 3766301, at *8. There is, however, a wellrecognized exception to the mootness doctrine holding that “a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.” City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982); see also United States v. W.T. Grant Co., 345 U.S. 629, 632 (1953) (“[V]oluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e., does not make the case moot.”).
The voluntary cessation exception “traces to the principle that a party should not be able to evade judicial review, or to defeat a judgment, by temporarily altering questionable behavior.” City News & Novelty, Inc. v. City of Waukesha, 531 U.S. 278, 284 n.1 (2001). Accordingly, the exception seeks to prevent “a manipulative litigant immunizing itself from suit indefinitely, altering its behavior long enough to secure a
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dismissal and then reinstating it immediately after.” ACLU of Mass. v. U.S. Conference
of Catholic Bishops, 705 F.3d 44, 54–55 (1st Cir. 2013) (citing Already, LLC v. Nike,
Inc., 133 S. Ct. 721, 727 (2013)); see also Knox v. Serv. Emps. Int’l Union, Local 1000,
132 S. Ct. 2277, 2287 (2012) (“The voluntary cessation of challenged conduct does not
ordinarily render a case moot because a dismissal for mootness would permit a
resumption of the challenged conduct as soon as the case is dismissed.”). To that end, “a
defendant claiming that its voluntary compliance moots a case bears the formidable
burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.” Laidlaw, 528 U.S. at 190.3
The Supreme Court has held that a defendant satisfies this heavy burden when, for
example, it enters into an “unconditional and irrevocable” agreement that prohibits it
from returning to the challenged conduct. Already, LLC, 133 S. Ct. at 728. Likewise, we
have held that a governmental entity’s change of policy renders a challenge moot when
3 A voluntary cessation of challenged conduct must be “at least somewhat related” to the pending litigation for the voluntary cessation exception to apply. Wall, 741 F.3d at 498 n.8. Defendants contend that the exception does not apply here because the district court found that the changes to the challenged policies “were contemplated prior to the initiation of litigation,” and that finding was not clearly erroneous. Appellees’ Br. at 29. We do not agree that the district court engaged in any such factfinding, and in any event, the record was not sufficient to support a determination that the exception did not apply. Most critically, regardless of when the policy changes were first considered, the changes were made only after this case was initiated and they came after Defendants’ vigorous resistance to changes for several years. Additionally, the interim rules and regulations that effected a repeal of the challenged policies were promulgated only after this suit was initiated and the district court denied Defendants’ motion to dismiss. And the interim rules and regulations were not made final until after the district court ordered a status update regarding whether the rules and regulations had been finalized.
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the governmental entity “has not asserted its right to enforce [the challenged policy] at any future time.” Telco Commc’ns, Inc. v. Carbaugh, 885 F.2d 1225, 1231 (4th Cir. 1989). In the context of conditions of confinement cases, in particular, courts have found that a change that “completely and irrevocably eradicate[s] the effects” of the condition or policy subject to challenge renders an action moot. Lindquist v. Idaho State Bd. of Corr., 776 F.2d 851, 854 (9th Cir. 1985) (internal quotation marks omitted) (quoting Cty. of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)) (finding challenge to adequacy of prison library mooted by replacement of library with larger facility); see also Incumaa v. Ozmint, 507 F.3d 281, 286–87 (4th Cir. 2007) (holding that transfer of plaintiff inmate from unit or location where he is subject to challenged policy to unit or location where he cannot be subject to challenged policy renders challenge to policy to moot).
By contrast, a defendant fails to meet its heavy burden to establish that its allegedly wrongful behavior will not recur when the defendant “retains the authority and capacity to repeat an alleged harm.” Wall, 741 F.3d at 497; see also Pashby v. Delia, 709 F.3d 307, 316–17 (4th Cir. 2013) (holding that a governmental entity’s change to a challenged policy does not moot an action when the government retains authority to “reassess . . . at any time” the change and revert to the challenged policy). And courts have been particularly unwilling to find that a defendant has met its heavy burden to establish that its allegedly wrongful conduct will not recur when the defendant expressly states that, notwithstanding its abandonment of a challenged policy, it could return to the contested policy in the future, see Town of Nags Head v. Toloczko, 728 F.3d 391, 394 n.3 (4th Cir. 2013), or when the defendant’s “reluctant” decision to change a policy reflects
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“a desire to return to the old ways,” Citizen Center v. Gessler, 770 F.3d 900, 908 (10th Cir. 2014) (internal quotation marks omitted) (quoting Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1117 (10th Cir. 2010)). In the context of litigation regarding the policies governing prisoners’ conditions of confinement, in particular, courts have refused to find a challenge to an abandoned policy or practice moot when the prison refuses either to “promise[] not to resume the prior practice,” Rich v. Sec’y, Fla. Dep’t of Corr., 716 F.3d 525, 532 (11th Cir. 2013) (internal quotation marks omitted) (quoting Jager v. Douglas Cty. Sch. Dist., 862 F.2d 824, 833–34 (11th Cir. 1989)), or to otherwise “unambiguously terminate[]” the challenged practice, Doe v. Wooten, 747 F.3d 1317, 1324 (11th Cir. 2014).
Here, nothing bars the Corrections Department from reverting to the challenged policies in the future. And given Operating Procedure 425.A’s requirement that the Corrections Department review the policy governing Plaintiffs’ conditions of confinement annually and rewrite that policy no later than three years after the current policy’s effective date, it is more than a “mere possibility” that Defendants will alter Plaintiffs’ current conditions of confinement. W.T. Grant, 345 U.S. at 633; see also Wall, 741 F.3d at 497 (finding change in policy did not moot action when there was “some degree of doubt that the new policy will remain in place for long”).
More significantly, 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. On the contrary, as the district court found, Defendants repeatedly have “decline[d] to explicitly acknowledge that the pre-2015 conditions of confinement were
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unconstitutional or to offer explicit guarantees that the [Corrections Department] will not return to those conditions.” Porter, 2016 WL 3766301, at *9; see also, e.g., J.A. 1162 (stating that Corrections Department refused to agree to consent decree keeping revised policies in place because it “didn’t want anything in place that would necessarily bind [it] to act in one manner or another”); J.A. 1164–65 (“[T]he [Corrections Department does not] ha[ve] any intent whatsoever to go back to the way things were, but the department can’t be blind to the fact that things might change in the future.”). Indeed, during oral argument, Defendants’ counsel said the Corrections Department could not foreswear a return to the challenged policies because it “doesn’t have a crystal ball that will enable [it] to know what might happen on death row ten years from now. . . . If the director had stood up and sworn that we were never going to go back, period, I don’t think that is a statement that he could make without making a misrepresentation to the court.” Oral Arg. 24:27–57.
We do not question the Corrections Department’s penological rationale for refusing to guarantee that it will not revert to the challenged policies if conditions so require. But given that the Corrections Department (1) “retains the authority and capacity” to return to the challenged policies, Wall, 741 F.3d at 497, (2) refuses to “promise[] not to resume the prior practice,” Rich, 716 F.3d at 532 (internal quotation marks omitted) (quoting Jager, 862 F.2d at 833–34), and (3) has suggested circumstances may require re-imposing the challenged policies, Defendants cannot meet their “formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur,” Laidlaw, 528 U.S. at 190. Indeed, the facts
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of the present case closely track those in Wall, in which we found that the Corrections
Department’s revision of a challenged policy after the initiation of litigation did not moot
the case when: the Corrections Department failed to establish that it would not reinstate
the policy following completion of the lawsuit; the Corrections Department did not
suggest it was barred or considered itself barred from reinstating the policy if it so chose;
and there was “some degree of doubt that the new policy w[ould] remain in place for
long.” 741 F.3d at 497. Accordingly, the district court erred in dismissing Plaintiffs’
action as moot.4
4 Defendants argue that “this case also fails for lack of an effective remedy.” Appellees’ Br. at 27; see 18 U.S.C. § 3626(a)(1)(A) (“Prospective 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. 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.”); see also id. § 3626(g)(7) (defining “the term ‘prospective relief’ [to] mean[] all relief other than compensatory monetary damages”). This argument also underlies Defendants’ contention that Plaintiffs’ claims should be dismissed under the doctrine of prudential mootness. The district court, however, did not address the merits of Plaintiffs’ claims for declaratory and injunctive relief, see Porter, 2016 WL 3766301, at *11 (noting that, because it concluded the case was moot, “it would be inappropriate . . . to invoke the injunction authority of the Court”), and therefore we decline to do so now, see Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173, 1182 n.10 (11th Cir. 2007) (“[L]ike the district court, we have decided only the mootness question; we offer no opinion on the merits of [the plaintiff’s] claims for declaratory and injunctive relief.”). If Defendants so request, the district court can address Plaintiffs’ entitlement to declaratory and injunctive relief on remand. See Sheely, 505 F.3d at 1182 n.10 (“Even though a case is not moot, that does not mean that injunctive relief follows automatically . . . . Therefore, nothing in this opinion should be read to preclude the district court on remand, and after appropriate review, from deciding that equitable relief is not warranted.” (citation omitted)); Carreras v. City of Anaheim, 768 F.2d 1039, 1047 n.19 (9th Cir. 1985), abrogated on other grounds by L.A. Alliance for Survival v. City of Los Angeles, 993 P.2d 334, 350 (2000) (“On remand in this case, the city may attempt to show that the likelihood of its (Continued)
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For the reasons stated herein, the judgment of the district court is REVERSED AND REMANDED.
engaging in similar constitutional violations is sufficiently remote to make injunctive relief unnecessary.”). For the same reason, we also decline to find Plaintiffs’ action equitably moot.
16

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

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division

THOMAS PORTER, et al., Plaintiffs,
v.
HAROLD W. CLARKE, et al., Defendants.

)

)

)

)

)

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

)

)

)

)

MEMORANDUM OPINION

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 ofthis litigation violated the Eighth Amendment ofthe 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

confinement.

I. BACKGROUND

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

Case 1:14-cv-01588-LMB-IDD Document 220 Filed 02/21/18 Page 2 of 37 PageID# 4032
on death row before being executed in January 2017. Compl. [Dkt. No.1]~ 2; Answer [Dkt. No.
49] ~ 2. 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,1 claiming that the conditions of their confinement on death row violate the Eighth
Amendment and the Fourteenth Amendment. The still-living plaintiffs are three ofthe 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).3 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
1 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 April1, 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).
2

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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 of71 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. ld. ~~ 12-13; Compl. ~ 5; 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 ofthem. Clarke Aff. ~ 14. 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 4 Due to the history of this case, there are two full sets of briefing: the parties' original (20 15) summary judgment briefs, which mainly address the substantive Eighth Amendment question, and the parties' renewed (20 17) 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."
3

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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. ~~ 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. ~~ 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 ~~ 7-8. According to the results of this screening, Porter and Juniper were (as of2015) classified
5 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.
4

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as MH-O, 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. ljf 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 20 12; 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. ~ljf 57-58. On August 6, 2015, Zook approved a number of interim rules and regulations for death row. ld.ljf 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
5

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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 ~ 23. 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. ld.
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
6

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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.
II. STANDARD OF REVIEW 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 Com. v. AM Int'l, 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, "[fJlexibility 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").
III. PLAINTIFFS' EIGHTH AMENDMENT CLAIM 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 20 15 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. ld. 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 ofharm."6
Angelone, 330 F.3d at 634. If the risk ofharm was "obvious," the Court "may infer the existence
of this subjective state of mind." Hope v. Pelzer, 536 U.S. 730, 738 (2002). Similarly, ifthe
challenged conditions lacked any legitimate law enforcement or penological purpose, the
6 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." ld. 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
10

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likely is allowed little or no opportunity for conversation or interaction with anyone." Davis v. Ayal~ 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
7 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," "[p]lacement 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 ofCorr., 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. ld. 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. [Dkt. No. 124] 8 (formatting and capitalization altered) (quoting Hall v. Florid~ 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." ld. 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 Ayal~ 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." ld. 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 ofthe 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 ofthe 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 omitted).
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. 10
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. 11 In his concurrence in Ayala,
Justice Kennedy discussed the "factual circumstance" ofthe plaintiffs 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
10 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. Saathoffs, 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. Saathoffs. 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. Ayal~ 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. Incum~ 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 '[t]he 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 ofthe 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 inmates. 14
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.
IV. PLAINTIFFS' ENTITLEMENT TO INJUNCTIVE RELIEF
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
13 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. · 14 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 391.1n 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 Adeguate 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
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 oftheir 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. Pl. 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 rei. 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 Reguirements 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,
23

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." ld. 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.
24

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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."17 Ren. Def. Mem. 22-23 & 23 n.l05.
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. Id. at 15. Second, plaintiffs argue that the
differences in language between§ 3626(a)(l)(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. ld. at 15-16. Third, plaintiffs point to a
variety of case law in support oftheir position, including an Eleventh Circuit case explicitly
holding that the "current and ongoing" requirement is not applicable to the question of initial prospective relief18 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)(l)(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
25

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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 16-1 7.
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 ofthe 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)(l)(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
27

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the least intrusive means" to correct the violation. Ren. Def. Opp. 17. Although plaintiffs request only an injunction prohibiting VDOC from reinstating the pre-20 15 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 ofhis appeal? ... [And h]ow would VDOC comply with any command for congregate recreation if the number ofdeath 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.2 Finally, with respect to
duration, the requested injunction will only remain in effect for two years absent a finding by the
20 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 ofdefendants, much less any substantial financial outlay.
28

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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.
29

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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?1
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." ld. at 19. Therefore, plaintiffs
21 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 until2015. 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 until2015, 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 ofVDOC'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 ofVDOC, 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-20 15 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 reliefbecause 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.
32

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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
24 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."
33

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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.
34

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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. 25 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 ofmootness 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.
35

Case 1:14-cv-01588-LMB-IDD Document 220 Filed 02/21/18 Page 36 of 37 PageID# 4066 V. CONCLUSION
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.
S'iEntered this~/ day of February, 2018. Alexandria, Virginia
36

Case 1:14-cv-01588-LMB-IDD Document 220 Filed 02/21/18 Page 37 of 37 PageID# 4067

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 Case 1:14-cv-01588-LMB-IDD Document 240 Filed 05/06/19 Page 1 of 52 PageID# 4175

PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-6257

THOMAS PORTER; ANTHONY BERNARD JUNIPER; MARK LAWLOR, Plaintiffs - Appellees,
and RICKY GRAY; IVAN TELEGUZ,
Plaintiffs, v. HAROLD W. CLARKE; DAVID ZOOK,
Defendants - Appellants. -----------------------------AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA, INCORPORATED; THE RUTHERFORD INSTITUTE; PROFESSORS AND PRACTITIONERS OF PSYCHIATRY AND PSYCHOLOGY,
Amici Supporting Appellee.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Leonie M. Brinkema, District Judge. (1:14-cv-01588-LMB-IDD)

Argued: December 13, 2018 Amended: May 6, 2019

Decided: May 3, 2019

Before NIEMEYER, KING, and WYNN, Circuit Judges.

Case 1:14-cv-01588-LMB-IDD Document 240 Filed 05/06/19 Page 2 of 52 PageID# 4176
Affirmed by published opinion. Judge Wynn wrote the opinion, in which Judge King joined. Judge Niemeyer wrote a dissenting opinion.
ARGUED: Matthew Robert McGuire, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellants. Catherine Emily Stetson, HOGAN LOVELLS US LLP, Washington, D.C., for Appellees. ON BRIEF: Mark R. Herring, Attorney General, Victoria N. Pearson, Deputy Attorney General, Margaret Hoehl O’Shea, Assistant Attorney General, Toby J. Heytens, Solicitor General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellants. Kathryn M. Ali, Yuri Fuchs, Elizabeth C. Lockwood, W. David Maxwell, Ryan J. Stephenson, HOGAN LOVELLS US LLP, Washington, D.C.; Victor M. Glasberg, VICTOR M. GLASBERG & ASSOC., Alexandria, Virginia; Steven D. Rosenfield, Jeffrey E. Fogel, Charlottesville, Virginia, for Appellees. David W. DeBruin, Washington, D.C., Jeffrey A. Atteberry, JENNER & BLOCK LLP, Los Angeles, California, for Amici American Civil Liberties Union Foundation of Virginia, Inc. and The Rutherford Institute. Eden Heilman, Claire Guthrie Gastañaga, AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF VIRGINIA, INC., Richmond, Virginia, for Amicus American Civil Liberties Union Foundation of Virginia, Inc. John W. Whitehead, Doug R. McKusick, THE RUTHERFORD INSTITUTE, Charlottesville, Virginia, for Amicus The Rutherford Institute. Daniel M. Greenfield, Roderick and Solange MacArthur Justice Center, NORTHWESTERN PRITZKER SCHOOL OF LAW, Chicago, Illinois, for Amici Curiae Professors and Practitioners of Psychiatry and Psychology.
2

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WYNN, Circuit Judge: Defendants Harold W. Clarke, in his official capacity as director of the Virginia
Department of Corrections, and David Zook, in his official capacity as warden of Virginia’s Sussex I State Prison (collectively, “State Defendants”), appeal a decision by the U.S. District Court for the Eastern District of Virginia holding that conditions of confinement on Virginia’s death row violated the Eighth Amendment and enjoining reinstatement of those conditions. The district court held that the death row inmates’ long-term detention in conditions amounting to solitary confinement created a “substantial risk” of psychological and emotional harm and that State Defendants were “deliberately indifferent” to that risk. See Porter v. Clarke, 290 F. Supp. 3d 518, 530–33 (E.D. Va. 2018). For the reasons that follow, we affirm.
I. Plaintiffs Thomas Porter, Anthony Juniper, and Mark Lawlor (collectively, “Plaintiffs”) are housed on Virginia’s death row at Sussex I State Prison (“Sussex Prison”). Death row consists of two tiers, with each tier holding twenty-two cells and three showers. Porter, 290 F. Supp. 3d at 522. Each death row inmate is housed in a separate cell, and no inmates are housed in adjacent cells. Each cell is 71 square feet— approximately one-half the size of a parking space—and has a 10.5-foot-high ceiling. Cells contain a bed, a small desk adjacent to the bed, and a commode/sink combination. Each cell has a window that is 5 inches high by 41.5 inches long, which is covered by a wire mesh that allows natural light to pass through into the cell. Each cell’s door is made
3

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of solid steel, includes a tray slot that is bolted shut when not in use, and a “rectangular in-set window that allow[s] inmates to look outside their cell into the pod.” Id. at 523.
In November 2014—when Plaintiffs filed this lawsuit—two documents governed Plaintiffs’ conditions of confinement on death row: Virginia Department of Corrections (“Corrections Department”) Operating Procedure 460A, effective March 2010, and the Sussex Prison Institutional Rules and Regulations for Offenders, effective February 2010. These procedures and regulations allowed death row inmates one hour of outdoor recreation five days a week, and a ten-minute shower three days a week. During their outdoor recreation, inmates were confined to individual enclosures with concrete floors and enclosed by a steel and wire mesh cage. Each enclosure measured 7.9 feet wide by 20 feet long—approximately the size of a parking space—and 10 feet high. Id. None of the enclosures had exercise equipment. Inmates could not simultaneously use adjacent recreation enclosures.
Under the governing procedures and regulations, cells on death row were always lit: during the day, cells were illuminated by a main light mounted on the wall, and at night a low-level night light provided illumination for security and safety purposes. Inmates housed on death row could keep a television and compact disc player in their cell and borrow approved publications and library materials to read. Additionally, inmates could request and use wireless telephones any day of the week between 8:00 a.m. and 9:30 p.m.
The governing regulations and procedures allowed death row inmates to have noncontact visitation on weekends and state holidays. Inmates also could request contact
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visitation with immediate family members in “extreme circumstances” once every six months, which request the warden had unconstrained discretion to grant or deny. J.A. 997. In practice, the warden would grant a request for contact visitation only when an inmate was approaching “death.” J.A. 997. Additionally, inmates had limited contact with prison staff. Corrections officers made rounds through the death row pod to perform security checks on inmates every thirty minutes and could—and sometimes would— speak with inmates to see if they needed assistance or had requests. Medical personnel and nurses also made rounds through the pod twice a day to provide inmates with medication. And death row inmates received visits from a mental-health practitioner at least once a week, and case counselors made rounds through the pod once a day.
Two inmates housed on death row, Plaintiff Porter and former Plaintiff Ricky Gray,1 were allowed out of their cells to perform institutional jobs. “Other than these limited out-of-cell interactions, death row inmates were generally not permitted to leave their cells.” Porter, 290 F. Supp. 3d at 523. “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.” Id. Due to these restrictions, death row inmates spent between 23 and 24 hours per day in their cells. Id. at 528.
In November 2014, Plaintiffs filed suit against Clarke, in his official capacity as director of the Corrections Department, and Keith Davis, who, at that time, served as
1 Virginia executed Gray on January 18, 2017.
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warden of Sussex Prison. Plaintiffs alleged that the then-existing conditions of confinement on Virginia’s death row violated the Eighth Amendment and sought injunctive and declaratory relief.
On February 21, 2018, the district court awarded summary judgment in Plaintiffs’ favor on their Eighth Amendment claim. Porter, 290 F. Supp. 3d at 533. In reaching that conclusion, the district court held that, under the undisputed evidence, the conditions of confinement on Virginia’s death row—particularly inmates’ prolonged periods of isolation—“created, at the least, a significant risk of substantial psychological or emotional harm.” Id. at 532. The district court further held that, under the undisputed evidence, that State Defendants were “deliberate[ly] indifferen[t]” to that risk of harm. Id. at 533. The district court awarded Plaintiffs injunctive and declaratory relief, concluding that such relief was available under the Prison Litigation Reform Act (“PLRA”) and was necessary because there “exist[ed] some cognizable danger of recurrent violation.” Id. at 534–42 (quoting United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953)). State Defendants timely appealed.
II. On appeal, State Defendants argue that the district court erred (A) in awarding summary judgment to Plaintiffs on their Eighth Amendment claim and (B) in awarding Plaintiffs injunctive relief. We address each argument in turn.
A. At the outset, State Defendants argue that the district court erred in awarding Plaintiffs summary judgment on their Eighth Amendment conditions of confinement
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claim. Summary judgment is proper when there are no material disputes of fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). This Court reviews de novo a district court’s award of summary judgment. United States v. Ancient Coin Collectors Guild, 899 F.3d 295, 312 (4th Cir. 2018).
The Eighth Amendment, which prohibits infliction of “cruel and unusual punishments,” U.S. Const. amend. VIII, applies to claims by prisoners against corrections officials challenging conditions of confinement. See Scinto v. Stansberry, 841 F.3d 219, 225 (4th Cir. 2016) (“[T]he Eighth Amendment imposes a duty on prison officials to ‘provide humane conditions of confinement . . . [and] ensure that inmates receive adequate food, clothing, shelter, and medical care.” (quoting Farmer v. Brennan, 511 U.S. 825, 832 (1994))); Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir. 1996). Whether an inmate’s conditions of confinement amount to “cruel and unusual punishment” must be measured against “the evolving standards of decency that mark the progress of a maturing society.” Estelle v. Gamble, 429 U.S. 97, 102 (1976) (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)). Like any other Eighth Amendment claim, an Eighth Amendment conditions of confinement claim has (1) “objective” and (2) “subjective” components. Scinto, 841 F.3d at 225 (citing Farmer, 511 U.S. at 834).
1. To satisfy the “objective” prong, a plaintiff inmate must “demonstrate that ‘the deprivation alleged [was], objectively, sufficiently serious.’” Id. at 225. (quoting Farmer, 511 U.S. at 834). “To be ‘sufficiently serious,’ the deprivation must be ‘extreme’—meaning that it poses a ‘serious or significant physical or emotional injury
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resulting from the challenged conditions,’ or ‘a substantial risk of serious harm resulting from . . . exposure to the challenged conditions.’” Id. (quoting De’Lonta v. Angelone, 330 F.3d 630, 634 (4th Cir. 2003)).
More than a century ago, the Supreme Court recognized the adverse consequences to inmates’ mental health posed by prolonged detention in conditions akin to solitary confinement. According to the Court, “experience demonstrated” that, when placed in isolation, “[a] considerable number of prisoners fell, after even a short confinement, into a semi-fatuous condition, from which it was next to impossible to arouse them, and others became violently insane; others still, committed suicide; while those who stood the ordeal better were not generally reformed, and in most cases did not recover sufficient mental activity to be of any subsequent service to the community.” In re Medley, 134 U.S. 160, 168 (1890).
In recent years, advances in our understanding of psychology and new empirical methods have allowed researchers to characterize and quantify the nature and severity of the adverse psychological effects attributable to prolonged placement of inmates in isolated conditions materially indistinguishable from the challenged conditions on Virginia’s death row. For example, a report submitted by one of Plaintiffs’ experts in clinical and forensic psychology, Dr. Mark Cunningham, notes “that the associated adverse psychological reactions to solitary confinement detailed in th[e] literature include psychotic-spectrum symptoms of paranoia and hallucinations; mood-spectrum symptoms of depression, withdrawal, appetite and sleep disturbance, fatigue and lethargy, and suicidal ideation; anxiety spectrum symptoms of subjective distress, feelings of
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impending doom, somatic complaints, dissociative experience, and ruminative thoughts; affective lability characterized by irritability, rage, and aggressive impulses; and behavioral self-control symptoms of aggression, assaults, and self-mutilation.” J.A. 1041.
Numerous studies reveal that prolonged detention of inmates in conditions akin to those Plaintiffs faced on Virginia’s death row also leads to “psychological deterioration,” including “‘declines in mental functioning,’” “‘difficulties in thinking, concentration and memory problems, and problems with impulse control.’” J.A. 1042 (quoting Jesenia Pizarro & Vanja M. K. Stenius, Supermax Prisons: Their Rise, Current Practices, and Effect on Inmates, 84 Prison J. 248, 256 (2004)). Similarly, another expert in forensic and clinical psychology retained by Plaintiffs, Dr. Michael Hendricks, reports that “common adverse psychological effects of isolation housing in prison and jail settings (i.e., typically found to have been experienced by at least half of inmates in these settings) include anxiety, headaches and other psychosomatic symptoms, lethargy, insomnia, decreased appetite, and nightmares.” J.A. 925.
Notwithstanding that scholars have conducted dozens of studies on the psychological and emotional effects of solitary and segregated confinement, the leading survey of the literature regarding such confinement found that “there is not a single published study of solitary or supermax-like confinement in which nonvoluntary confinement lasted for longer than 10 days, where participants were unable to terminate their isolation at will, that failed to result in negative psychological effects.” J.A. 1041 (emphases added) (quoting Craig Haney, Mental Health Issues in Long-Term Solitary
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and “Supermax” Confinement, 49 Crime & Delinquency 124, 132 (2003)). Based on this extensive body of literature, scholars have concluded that “solitary confinement has potentially serious psychiatric risks.” J.A. 1042 (quoting Pizarro & Stenius, supra at 256); see also Br. Amici Curiae Profs. & Practitioners of Psychiatry & Psychology in Supp. of Pls.–Apps. and Affirmance (“Amici Br.”) at 8–9 (“Scientific research, regardless of methodology, has produced strikingly consistent results: the deprivation of meaningful social contact and positive environmental stimulation characteristic of solitary confinement subjects prisoners to grave psychological and physiological harms.” (internal quotation marks omitted)). Notably, State Defendants adduced no evidence refuting Plaintiffs’ expert evidence establishing the risks and serious adverse psychological and emotional effects of prolonged solitary confinement, or the surveys of the scholarly literature supporting that evidence.
Courts have taken note of this extensive—and growing—body of literature. In recent years, Justice Kennedy and Justice Breyer authored separate opinions highlighting the serious psychological and emotional harm caused by segregated or solitary confinement under conditions materially indistinguishable from those that existed on Virginia’s death row. See Ruiz v. Texas, 137 S. Ct. 1246, 1247 (2017) (Breyer, J., dissenting from denial of stay of execution) (stating that evidence demonstrated that the petitioner, an inmate held on Texas’s death row, “ha[d] developed symptoms long associated with solitary confinement, namely severe anxiety and depression, suicidal thoughts, hallucinations, disorientation, memory loss, and sleep difficulty”); Glossip v. Gross, 135 S. Ct. 2726, 2765 (2015) (Breyer, J., dissenting) (reviewing literature and
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stating that “it is well documented that . . . prolonged solitary confinement produces numerous deleterious harms”); Davis v. Ayala, 135 S. Ct. 2187, 2210 (2015) (Kennedy, J., concurring) (“[R]esearch still confirms what this Court suggested over a century ago: Years on end of near-total isolation exact a terrible price.”).
Likewise, this Court stated that “[p]rolonged solitary confinement exacts a heavy psychological toll that often continues to plague an inmate’s mind even after he is resocialized.” Incumaa v. Stirling, 791 F.3d 517, 534 (4th Cir. 2015). And the Third Circuit recently reviewed the “robust body of scientific research on the effects of solitary confinement” and found a “scientific consensus” that such confinement “is psychologically painful, can be traumatic and harmful, and puts many of those who have been subjected to it at risk of long-term . . . damage.” Williams v. Sec’y Penn. Dep’t of Corr., 848 F.3d 549, 566–67 (3d Cir. 2017), cert denied sub nom. Walker v. Farnam, 138 S. Ct. 357 (2017), and cert denied sub nom. Williams v. Wetzel, 138 S. Ct. 357 (2017); see also, e.g., Grissom v. Roberts, 902 F.3d 1162, 1176–77 (10th Cir. 2018) (Lucero, J., concurring) (reviewing academic literature and determining that “solitary confinement, even over relatively short periods, renders prisoners physically sick and mentally ill. . . . These harms, which are persistent and may become permanent, become more severe the longer a person is exposed to solitary confinement.”).
Of particular relevance, several courts have found—based on the empirical evidence set forth above—that solitary confinement poses an objective risk of serious psychological and emotional harm to inmates, and therefore can violate the Eighth Amendment. See, e.g., Palakovic v. Wetzel, 854 F.3d 209, 225–26 (3d Cir. 2017)
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(“acknowledg[ing] the robust body of legal and scientific authority recognizing the devastating mental health consequences caused by long-term isolation in solitary confinement”); Ashker v. Brown, No. C 09-5796, 2013 WL 1435148, at *4–5 (N.D. Cal. Apr. 9, 2013); Wilkerson v. Stalder, 639 F. Supp. 2d 654, 678–79 (M.D. La. 2007) (“It is obvious that being housed in isolation in a tiny cell for 23 hours a day for over three decades results in serious deprivations of basic human needs.”); McClary v. Kelly, 4 F. Supp. 2d 195, 208 (W.D.N.Y. 1998) (“[T]hat prolonged isolation from social and environmental stimulation increases the risk of developing mental illness does not strike this Court as rocket science.”).
We agree. The challenged conditions of confinement on Virginia’s death row— under which Plaintiffs spent, for years, between 23 and 24 hours a day “alone, in a small . . . cell” with “no access to congregate religious, educational, or social programming”— pose a “substantial risk” of serious psychological and emotional harm. Porter, 290 F. Supp. 3d at 527–28.
State Defendants nevertheless argue that the district court erred in holding that the undisputed evidence satisfied Plaintiffs’ burden under the objective prong for three reasons: (1) this Court previously has found that the placement of inmates in conditions of confinement as or more isolating than those faced by Plaintiffs did not pose an objective risk of serious harm; (2) Plaintiffs were not, as a matter of fact, held in “solitary” confinement; and (3) Plaintiffs’ “generalized” evidence of the risks posed by solitary confinement does not establish that Plaintiffs, in particular, experienced such harms. Appellants’ Br. at 43–48.
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First, State Defendants maintain—and our colleague in dissent agrees—that the district court erred because this Court’s decisions in Sweet v. South Carolina Department of Correction, 529 F.2d 854 (4th Cir. 1975) (en banc), and Mickle v. Moore, 174 F.3d 464 (4th Cir. 1999), upheld conditions of confinement that are “squarely analogous” to the challenged conditions on Virginia’s death row. Appellants’ Br. at 44. In Sweet, this Court stated that “‘isolation from companionship,’ ‘restriction on intellectual stimulation and prolonged inactivity,’ inescapable accompaniments of segregated confinement, will not render segregated confinement unconstitutional absent other illegitimate deprivations. Nor will the fact that the segregated confinement is prolonged and indefinite be sufficient in itself to command constitutional protection, though it is a factor to be considered.” 529 F.3d at 861. But Sweet significantly predated all the Supreme Court’s conditions of confinement decisions—including Rhodes v. Chapman, 452 U.S. 337, 347 (1981), which first set forth the standard for satisfying the objective component of a conditions of confinement claim—and lacked the benefit of the recent academic literature surveyed by Plaintiffs’ experts concerning the harmful psychological and emotional effects of prolonged solitary confinement. Because Sweet was decided under a different legal standard, we agree with the district court that Sweet cannot—does not—control this case.
Mickle involved an Eighth Amendment challenge by members of the “Five Percenters” gang who the South Carolina Department of Correction transferred to “longterm segregated confinement” after a series of violent incidents perpetrated by incarcerated members of the gang. 174 F.3d at 466–67, 471. Under the terms of their segregated confinement, the gang members were “confined to their cells for twenty-three
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hours per day without radio or television,” received “only five hours of exercise per week,” and could not “participate in prison work, school, or study programs.” Id. at 471. Citing Sweet, Mickle held that the Five Percenters failed to show that their conditions of confinement amounted to “a serious deprivation of a basic human need” because “the isolation inherent in administrative segregation or maximum custody is not itself constitutionally objectionable.” Id. at 472. This Court also rejected the Five Percenters’ claim that the indefinite duration of their confinement in segregation rendered it unconstitutional, emphasizing that the Five Percenters failed to demonstrate that they had suffered a serious mental illness or psychological injury. Id. (further stating that the Five Percenters’ subjective claims of anxiety and depression were insufficient).
Like Sweet, we do not believe Mickle controls this case. To begin, Plaintiffs introduced two expert reports derived from surveying dozens of empirical analyses as well as observations of the challenged conditions on Virginia’s death row. Those reports demonstrated the serious psychological and emotional risks posed by conditions of confinement materially indistinguishable from those Plaintiffs’ faced on Virginia’s death row. Significantly, much of that research post-dates Mickle. See J.A. 924 (Hendricks report) (“[T]he research, particularly as it relates to special housing units in jails and prisons, has advanced greatly in the last 15 years, furthering the scientific understanding of the harmful effects of solitary confinement and social isolation in these facilities”); J.A. 1041 (Cunningham report) (listing key studies of the adverse impact of solitary and segregated confinement post-dating Mickle). By contrast, the Mickle plaintiffs did not introduce any expert reports or analyses concerning the risks of serious psychological and
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emotional harms attributable to long-term solitary confinement. Mickle, 174 F.3d at 472. Put simply, unlike Plaintiffs, the Mickle plaintiffs failed to establish an evidentiary record that would have allowed this Court to find that prolonged solitary confinement poses a serious risk of psychological and emotional harm.
Equally significant, the Five Percenters were placed in segregation based on their in-prison conduct and were removed from segregation if they renounced their membership with the group. Id. at 466–67. By contrast, the challenged Virginia procedures and regulations place death row inmates in solitary confinement based on their sentence alone and do not provide death row inmates with an avenue for removing themselves from segregation. Because Mickle involved a different set of facts than those adduced by Plaintiffs, our decision cannot—and does not—overrule Mickle. See United States v. Floresca, 38 F.3d 706, 711 (4th Cir. 1994) (“Because Bledsoe is on different facts than the instant case, . . . Bledsoe does not control our holding in this case.”); Cal. v. Anglim, 129 F.2d 455, 460 (9th Cir. 1942) (explaining that a later decision “does not overrule” an earlier decision when “[e]ach decision rests on different facts”).
Second, State Defendants argue that Plaintiffs were not, as a matter of fact, held in “solitary” confinement. In particular, State Defendants argue that Plaintiffs were not placed in the type of “solitary” confinement that the experts warned about because Plaintiffs were not “subject to ‘prolonged isolation’ or ‘lack of stimulation.’” Appellants’ Br. at 44. The undisputed facts belie that contention.
State Defendants do not dispute—nor could they—that the challenged procedures and regulations restricted death row inmates to their cells for between 23 and 24 hours a
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day. State Defendants also do not dispute that the challenged procedures and regulations denied death row inmates the opportunity for any form of congregate programming, recreation, or religious practice. And State Defendants do not dispute that, at the time they filed this case, Plaintiffs already had been housed in such isolated confinement for years. Dr. Hendricks’ unrebutted report avers that these and other challenged conditions on Virginia’s death row “hew closely to the sensory deprivation described in the studies in the research literature” finding and quantifying the adverse psychological and emotional effects associated with prolonged confinement in such conditions. J.A. 926– 27. Accordingly, under the undisputed facts, the scholarly articles regarding the consequences of prolonged solitary confinement relied on by Plaintiffs’ experts bear directly on the risks attributable to the challenged conditions of confinement on Virginia’s death row.
Additionally, in Wilkinson v. Austin, 545 U.S. 209 (2005), the Supreme Court characterized Ohio’s “administrative control” unit as “a highly restrictive form of solitary confinement,” id. at 214 (citing Austin v. Wilkinson, 189 F. Supp. 2d 719, 724–25 & n.5 (N.D. Ohio 2002)). Notably, the conditions of confinement for Ohio inmates housed in administrative control were materially less isolating than those faced by Plaintiffs on Virginia’s death row. Whereas Virginia’s death row inmates were housed in nonadjacent cells with solid steel doors—which, former Sussex Prison warden Davis concedes, pose a significant “imped[iment],” if not absolute barrier, to communication, J.A. 975—Ohio inmates housed in administrative control lived in “open-faced cells” or “cells with bars, not solid doors,” allowing inmates to “easily communicate,” Austin, 189
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F. Supp. 2d at 725–26. Whereas inmates on Virginia’s death row were entitled to outdoor exercise only five days a week, Ohio inmates housed in administrative control “ha[d] outside recreation available every day.” Id. at 725. Whereas Virginia denied death row inmates access to exercise equipment, Ohio inmates in administrative control had “access to basketball courts and work-out areas.” Id. And whereas the challenged procedures and regulations denied Virginia death row inmates access to congregate programming, Ohio allowed even those inmates housed in conditions more restrictive than administrative control to engage in some congregate activities, such as counseling. Id. at 725. Accordingly, under governing law, the challenged conditions on Virginia’s death row amount to, at a minimum, “a highly restrictive form of solitary confinement.” Wilkinson, 545 U.S. at 214.
The Supreme Court’s determination that Ohio’s administrative control unit constituted “a highly restrictive form of solitary confinement” also refutes State Defendants’ contention that Plaintiffs’ visits from or access to corrections officials and health professionals distinguished the challenged conditions of confinement from those that scholars and courts have found pose a substantial risk of serious psychological and emotional harm. Appellants’ Br. at 42–43. Put simply, if the ability to “easily communicate” with fellow inmates and engage in congregate programming did not prevent the Supreme Court from characterizing Ohio’s administrative control unit as a “highly restrictive form of solitary confinement,” then the limited contacts Virginia’s death row inmates had with prison officials and health professionals do not render the
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challenged conditions of confinement meaningfully less restrictive or isolating from a legal or factual perspective.
Third, State Defendants argue that Plaintiffs’ “generalized” evidence of the harms posed by solitary confinement cannot be used to establish that these Plaintiffs were, in fact, harmed by the challenged conditions on Virginia’s death row. State Defendants point out that their expert in psychiatry, Dr. Gregory B. Saathoff, evaluated most of the Plaintiffs and opined that none of them exhibited cognitive “instability or deterioration,” and that “symptoms of anxiety, depression, insomnia and associated symptoms reported by [Plaintiffs] are not unlike those that are exhibited by the general population offenders serving life sentences.” J.A. 193. By contrast, Plaintiffs’ expert, Dr. Hendricks, diagnosed Plaintiffs with several psychological and emotional conditions, which he opined were attributable to Plaintiffs’ conditions of confinement. Based on this conflicting evidence, the district court recognized that there is a dispute of fact as to whether Plaintiffs have, in fact, been harmed by their conditions of confinement. Porter, 290 F. Supp. 3d at 530–31.
But, as the district court held, that dispute of fact did not preclude a determination that the undisputed evidence established that Plaintiffs faced a “substantial risk” of serious harm from their conditions of confinement. Id. at 531. In particular, State Defendants never have offered evidence disputing the numerous studies and scholarly articles surveyed by Dr. Cunningham and Dr. Hendricks demonstrating that prolonged isolated confinement, under conditions closely analogous to those Plaintiffs challenge, creates a substantial risk of psychological and emotional harm, which risk is sufficient to
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satisfy the objective prong. J.A. 924–27; 1041–42. Accordingly, the district court correctly held that, under the undisputed facts, the challenged conditions of confinement on Virginia’s death row created a “substantial risk” of serious psychological and emotional harm.
2. To satisfy the “subjective” prong in an Eighth Amendment case, a plaintiff challenging his conditions of confinement must demonstrate that prison officials acted with “deliberate indifference.” Scinto, 841 F.3d at 225. “To prove deliberate indifference, plaintiffs must show that ‘the official kn[ew] of and disregard[ed] an excessive risk to inmate health or safety.’” Id. (quoting Farmer, 511 U.S. at 837). “Deliberate indifference is ‘more than mere negligence,’ but ‘less than acts or omissions [done] for the very purpose of causing harm or with knowledge that harm will result.’” Id. (quoting Farmer, 511 U.S. at 835). A plaintiff may satisfy this standard by “prov[ing] by circumstantial evidence that a risk was so obvious that it had to have been known.” Makdessi v. Fields, 789 F.3d 126, 136 (4th Cir. 2015). Put differently, “[a]n obvious risk of harm justifies an inference that a prison official subjectively disregarded a substantial risk of serious harm to the inmate.” Schaub v. VonWald, 638 F.3d 905, 915 (8th Cir. 2011). Here, several undisputed facts established State Defendants’ deliberate indifference. To begin, Plaintiffs’ evidence established that State Defendants, in fact, were aware of the substantial risk of psychological or emotional harm posed by solitary confinement. Former defendant Davis, who served as warden of Sussex Prison until he
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was replaced by Zook in March 2016, testified in June 2013—more than a year before Plaintiffs filed the instant case—that “being separated and alone from human contact, that we—as humans, we don’t survive very well that way with lack of human contact.” J.A. 972. And in that same case—in which defendant Clarke also was a named defendant—a November 2013 opinion issued by the district court characterized the challenged conditions of Virginia’s death row as “dehumanizing.” Prieto v. Clarke, No. 1:12-cv1199, 2013 WL 6019125, at *6 (E.D. Va. Nov. 13, 2015), rev’d on other grounds, 780 F.3d 245, 254–55 (4th Cir. 2015). Likewise, Corrections Department procedures barring detention of non-death row prisoners in segregated confinement—akin to the challenged conditions on death row—for longer than thirty consecutive days constitute unrebutted evidence of State Defendants’ awareness “that extended stays in segregation can have harmful emotional and psychological effects.” Porter, 290 F. Supp. 3d at 532. Notwithstanding this awareness, State Defendants elected not to revisit the challenged conditions until after Plaintiffs filed suit.
Additionally, the extensive scholarly literature describing and quantifying the adverse mental health effects of prolonged solitary confinement that has emerged in recent years provides circumstantial evidence that the risk of such harm “was so obvious that it had to have been known.” Makdessi, 789 F.3d at 136. As the district court correctly pointed out, “[g]iven [State D]efendants’ 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.” Porter, 290 F. Supp. 3d at 532.
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In determining that the undisputed evidence established State Defendants’ deliberate indifference, the district court disregarded State Defendants’ argument “that the policies were justified by legitimate security risks” and therefore had a “legitimate penological objective.” Id. at 532–33 & n.14. Although the court recognized that the question of “whether these conditions had a legitimate penological objective . . . would not be amenable to resolution at the summary judgment stage” because the parties presented conflicting evidence, the court said resolution of that question was “unnecessary . . . given the variety of other evidence that defendants knew of the potentially harmful effects of the pre-2015 conditions.” Id. at 33 n.14. Put differently, the district court concluded that it need not consider penological justification if independent evidence established that State Defendants acted with deliberate indifference.
We believe that the district court erred in failing to consider State Defendants’ penological justification for housing death row inmates in conditions amounting to solitary confinement. Both the Supreme Court and this Court have recognized that the penological justification supporting a challenged condition is relevant in a conditions of confinement case. See Rhodes, 452 U.S. at 346 (“Among ‘unnecessary and wanton’ inflictions of pain are those that are ‘totally without penological justification.’”); see also Lopez v. Robinson, 914 F.2d 486, 490 (4th Cir. 1990) (“Prison conditions are unconstitutional if they constitute an ‘unnecessary and wanton’ infliction of pain and are ‘totally without penological justification.’”). To be sure, the exact role of penological justification in analyzing an Eighth Amendment conditions of confinement case is
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unsettled. See Grenning v. Miller-Stout, 739 F.3d 1235, 1240 (9th Cir. 2014) (stating that “[t]he precise role of legitimate penological interests is not entirely clear in the context of an Eighth Amendment challenge to conditions of confinement,” but noting that “[t]he existence of a legitimate penological justification has, however, been used in considering whether adverse treatment is sufficiently gratuitous to constitute punishment for Eighth Amendment purposes”).
Perhaps the clearest way penological justification factors into “conditions of confinement cases” is through the subjective prong inquiry because, in a typical Eighth Amendment case, “[w]here there is no legitimate penological purpose for a prison official’s conduct, courts have ‘presum[ed] malicious and sadistic intent.’” Wood v. Beauclair, 692 F.3d 1041, 1050 (9th Cir. 2012) (quoting Giron v. Corr. Corp. of Am., 191 F.3d 1281, 1290 (10th Cir. 1999)); see also, e.g., Ricks v. Shover, 891 F.3d 468, 475 (3d Cir. 2018). Put differently, if a prison official lacks a legitimate penological justification for subjecting an inmate to a condition of confinement that poses a substantial risk of serious harm—like prolonged solitary confinement, see supra Part II.A.1—then the official is presumptively acting with deliberate indifference to that risk. But some opinions also treat penological justification as a component of the objective prong analysis. See, e.g., Thomas v. Bryant, 614 F.3d 1288, 1311 (11th Cir. 2010); Foster v. Runnels, 554 F.3d 807, 814 (9th Cir. 2009). And still others appear to treat it as a separate inquiry. See Rice ex rel. Rice v. Corr. Medical Svcs., 675 F.3d 650, 666 (7th Cir. 2012).
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Notwithstanding the uncertain role of penological justification in conditions of confinement cases, we believe—contrary to the district court’s opinion—that a legitimate penological justification can support prolonged detention of an inmate in segregated or solitary confinement, similar to the challenged conditions on Virginia’s death row, even though such conditions create an objective risk of serious emotional and psychological harm. Put simply, prison officials tasked with the difficult task of operating a detention center may reasonably determine that prolonged solitary detention of the inmate is necessary to protect the well-being of prison employees, inmates, and the public or to serve some other legitimate penological objective.2 Cf. Florence v. Bd. of Chosen Freeholders of Cty. of Burlington, 566 U.S. 318, 326 (2012) (“The difficulties of operating a detention center must not be underestimated by the courts.”).
We are not alone in this conclusion. For example, in Bass v. Perrin, 170 F.3d 1312 (11th Cir. 1999), the Eleventh Circuit held that the placement of two prisoners in segregation without access to outdoor recreation did not violate the Eighth Amendment because the prisoners had engaged in violent crimes while incarcerated, id. at 1316. “The pain inflicted on the plaintiffs, however, cannot be said to be unnecessary—in other
2 Because we hold that a legitimate penological justification can support even prolonged solitary detention of a particular inmate, our colleague in dissent’s suggestion that our opinion could “interfer[e]” with prison officials’ ability to safely confine inmates housed at “the federal supermax prisons in Colorado and Illinois” is without merit. Post at 44. Put simply, if a prison official reasonably determines that, notwithstanding the emotional and psychological risks, prolonged solitary detention of an inmate is necessary to protect the well-being of prison employees, inmates, and the public, then confinement of the inmate in such conditions will not violate the Eighth Amendment. As explained below, State Defendants simply chose to abandon any such argument in this case.
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words, ‘totally without penological justification,’” the court explained. Id. Likewise, the Seventh Circuit has held that “prolonged confinement in administrative segregation may constitute a violation of the Eighth Amendment . . ., depending on the duration and nature of the segregation and whether there were feasible alternatives to that confinement.” Rice, 675 F.3d at 666 (emphasis added); see also Grissom, 902 F.3d at 1178 (Lucero, J., concurring) (explaining, in a case challenging a prisoner’s prolonged placement in segregation, that “[a]t base, then, the question is whether the extreme nature of [the prisoner’s] confinement is justified by legitimate penological interests”).
Although we find that the district court erred in disregarding State Defendants’ argument that legitimate penological considerations justified the challenged conditions on Virginia’s death row, this error does not constitute a basis for vacating the district court’s award of summary judgment. State Defendants elected not to argue in their briefing to this Court that the district court erred in disregarding their previously asserted penological justifications. Perhaps State Defendants abandoned their penological justification argument on appeal because Plaintiffs presented unrebutted empirical evidence that, as a group, “[d]eath-sentenced inmates do not have disproportionate rates of serious violence when confined under general population security conditions.” J.A. 1028–36 (Cunningham report). Or perhaps, State Defendants elected not to pursue their penological justification argument because Virginia has not experienced, to date, any notable security incidents since it relaxed the challenged conditions on death row during the pendency of this litigation. See infra Part III.B.1. Regardless, we must respect that decision—strategic or otherwise—and therefore treat the issue as waived. See United
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States v. Washington, 743 F.3d 938, 941 n.1 (4th Cir. 2014) (“Issues that [the appellant] failed to raise in his opening brief are waived.”).
* * * * * In sum, the undisputed evidence established both that the challenged conditions of confinement on Virginia’s death row created a substantial risk of serious psychological and emotional harm and that State Defendants were deliberately indifferent to that risk. Accordingly, the district court properly awarded summary judgment in Plaintiffs’ favor on their Eighth Amendment claim.
B. State Defendants further argue that the district court reversibly erred in awarding Plaintiffs injunctive relief. We review a district court’s decision to award “equitable relief for abuse of discretion, accepting the court’s factual findings absent clear error, while examining issues of law de novo.” Dixon v. Edwards, 290 F.3d 699, 710 (4th Cir. 2002). Additionally, the Supreme Court has emphasized that a district court’s authority to award and fashion equitable relief is “necessarily broad and a strong showing of abuse must be made to reverse it.” W.T. Grant, 345 U.S. at 633. Here, State Defendants contend that Plaintiffs were not entitled to injunctive relief because: (1) post-filing changes to the challenged conditions on Virginia’s death row barred the award of equitable relief and (2) the PLRA permits district courts to impose injunctive or declaratory relief only if there is an “ongoing constitutional violation.” Appellants’ Br. at 25.
1.
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State Defendants first argue—and our colleague in dissent agrees—that the district court abused its discretion in awarding Plaintiffs injunctive relief “because the conditions that they brought suit to challenge no longer exist and because there is no realistic possibility of their reoccurrence.” Appellants’ Br. at 33–34.
On August 6, 2015—almost a year after Plaintiffs filed this action—the Corrections Department adopted revised procedures and regulations that provide death row inmates with several new privileges, including: (1) having “contact visitation with immediate family members one day per week for one and a half hours at a time”; (2) having “non-contact visitation on weekends and holidays with immediate family members and one approved non-family member”; (3) participating in in-pod recreation with a maximum of three other offenders seven days per week for a minimum of one hour per day; (4) participating in outdoor recreation five days per week for 90 minutes per day; and (5) showering seven days per week, for up to fifteen minutes. Porter, 290 F. Supp. 3d at 524. The in-pod, congregate recreation “occur[s] in a newly screened off area of the death row pod that contain[s] a television, two tables with seating, a bench, various games, and a JPAY kiosk that enable[s] inmates to download music, purchase books and movies, and send e-mails.” Id. The Corrections Department also constructed “a covered outdoor recreation yard that . . . include[s] two sections, each equipped with a basketball court and stationary exercise equipment, in which groups of up to four death row inmates could congregate.” Id. Plaintiffs concede that the relaxed conditions of confinement do not violate the Eighth Amendment.
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State Defendants contend, correctly, that when a defendant discontinues illegal conduct, a party seeking injunctive relief must demonstrate that such relief is “needed,” meaning that “there exists some cognizable danger of recurrent violation, something more than the mere possibility which serves to keep the case alive.” See W.T. Grant, 345 U.S. at 633. That being said, “[c]ourts require ‘clear proof’ that an unlawful practice has been abandoned, and must guard against attempts to avoid injunctive relief ‘by protestations of repentance and reform, especially when abandonment seems timed to anticipate suit, and there is a probability of resumption.’” Wilk v. Am. Med. Ass’n, 895 F.2d 352, 367 (7th Cir 1990) (quoting United States v. Oregon State Med. Soc’y, 343 U.S. 326, 333 (1952)). According to State Defendants, there is no “cognizable danger of recurrent violation” because “corrections officials have testified under oath that they have no intention of reverting to the prior conditions, and that testimony is . . . undisputed.” Appellant’s Br. at 24.
Notwithstanding State Defendants’ averred lack of present intent to revert to the challenged conditions, the district court found, as a matter of fact, that Plaintiffs satisfied their burden to demonstrate a “cognizable danger of recurrent violence.” Porter, 290 F. Supp. 3d at 539–40 (emphasis added). In support of that determination, the district court first found that State Defendants’ “change from the pre-2015 conditions of confinement to the current conditions was influenced, although not entirely dependent on, the current litigation.” Id. at 540. The district court further found that “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.” Id. And the district court found
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“most persuasive” that “although defendants individually state they do not currently intend to return to the pre-2015 conditions, they have declined to commit [the Corrections Department] to this nonreversion promise,” despite being offered several opportunities to do so, including in earlier proceedings before this Court. Id. at 524–25, 540 (emphasis added); see also Porter v. Clarke, 852 F.3d 358, 365 (4th Cir. 2017) (noting that “during oral argument, [State] Defendants’ counsel said the Corrections Department could not foreswear a return to the challenged policies”). Additionally, State Defendants have repeatedly reaffirmed—including in their briefing to this Court—that they do not believe the challenged conditions violate the Eighth Amendment.
The record supports each of the district court’s specific findings. And the district court’s ultimate factual finding of a “cognizable danger of recurrent violation” constitutes a reasonable inference from these well-supported facts and is therefore not subject to reversal under the applicable clear error standard of review. See Baxter v. Comm’r of I.R.S., 910 F.3d 150, 166–67 (4th Cir. 2018). Likewise, our sister circuits have relied on similar facts in finding a cognizable danger of recurrence adequate to support a district court’s award of injunctive relief. See, e.g., Wilk, 895 F.2d at 367–70 (holding that district court did not abuse its discretion in finding cognizable danger of recurrence— notwithstanding that it “wrongly placed the burden of proof on the [defendant]”—when defendant “expressed intent to comply” with the law, but also only discontinued challenged conduct as a result of litigation and “vigorously maintain[ed]” its challenged conduct was lawful); United States v. Laerdal Mfg. Corp., 73 F.3d 852, 857 (9th Cir. 1995) (holding that district court did not abuse its discretion in finding a cognizable
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danger of recurrence when defendant introduced reforms “under protest” and because “past illegal conduct gives rise to an inference that future violations may occur”). By contrast, neither State Defendants nor our dissenting colleague identifies any case involving analogous facts in which the Supreme Court, this Court, or any other appellate court held that a district court abused its discretion in awarding prospective injunctive relief.
The district court’s decision also is consistent with this Court’s admonition that “[a]n injunction should not be refused upon the mere ipse dixit of a defendant that, notwithstanding his past misconduct, he is now repentant and will hereafter abide by the law.” United States v. Hunter, 459 F.2d 205, 220 (4th Cir. 1972). Given that State Defendants have shown no “repentan[ce]”—they continue to argue, as they are entitled, that the challenged conditions comply with the Eighth Amendment—State Defendants’ professed intent not to return to the challenged practices did not preclude the district court from exercising its discretion to award injunctive relief.
2. Next, State Defendants argue that the district court erred in holding that the PLRA did not bar the award of prospective injunctive and declaratory relief. Whether the PLRA authorized such relief presents a question of statutory interpretation that this Court reviews de novo. See Stone v. Instrumentation Lab. Co., 591 F.3d 239, 242–43 (4th Cir. 2009); see also Dixon, 290 F.3d at 710 (providing for de novo review of questions of law bearing on a district court’s decision to award an injunction)
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The PLRA provides that “in any civil action with respect to prison conditions . . . [t]he 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.” 18 U.S.C. § 3626(a)(1). According to State Defendants, this language authorizes a court to award prospective relief only if there is an “ongoing constitutional violation.” Appellants’ Br. at 29. Emphasizing that Plaintiffs concede their current conditions of confinement comply with the Eighth Amendment, State Defendants argue that there is no longer an “ongoing constitutional violation” supporting the award of prospective relief.
In support of their position, State Defendants principally rely on the Ninth Circuit’s opinion in Hallett v. Morgan, 296 F.3d 732 (9th Cir. 2002). At issue in Hallett was a motion by a class of state prisoners to extend district court jurisdiction over a consent decree entered several years earlier in a case involving alleged Eighth Amendment violations at the prison. Id. at 738–39. After holding an evidentiary hearing, the district court concluded that the alleged constitutional violations at the prison no longer existed. Id. at 739. Relying on that finding, the state argued that Section 3626 barred extension of jurisdiction over the consent decree because there was no longer a “current and ongoing” violation. Id. at 743. The Ninth Circuit agreed, stating that “[t]he text of § 3626(a)(1)(A) suggests that in the absence of a ‘current and ongoing’ violation, there is no occasion to fashion prospective relief to cure the violation.” Id. at 743. “In
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other words, if a violation no longer exists, the statute does not permit the court to order prospective relief.” Id.
Although we have great respect for the Ninth Circuit’s opinion in Hallett, we are not persuaded to follow it. Specifically, Hallett’s reference to “current and ongoing” violation—a phrase that does not appear in the text of Section 3626(a)(1)—appears to derive from Section 3626(b)(3), which provides that “[p]rospective relief shall not terminate if the court makes written findings based on the record that prospective relief remains necessary to correct a current and ongoing violation of the Federal right, extends no further than necessary to correct the violation of the Federal right, and that the prospective relief is narrowly drawn and the least intrusive means to correct the violation.” 18 U.S.C. § 3626(b)(3) (emphases added). By its plain terms, Section 3626(b)(3) addresses the termination of prospective relief, not the initial imposition of such relief, which is at issue here and governed by Section 3626(a)(1). Notably, Section 3626(a)(1) does not include the “current and ongoing” language, notwithstanding that the rest of the language in Section 3626(a)(1) regarding when initial prospective relief is available tracks the language in Section 3626(b)(3).
Additionally, Congress’s decision to omit the “current and ongoing” language from Section 3626(a)(1), when it used such language in Section 3626(b)(3), provides strong evidence that Congress did not intend for the “current and ongoing” standard to apply outside of the termination context. See Russello v. United States, 464 U.S. 16, 23 (1983) (“Where Congress includes particular language in one section of a statute but omits it another section of the same Act, it is generally presumed that Congress acts
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intentionally and purposely in the disparate inclusion or exclusion.” (internal quotation marks and alterations omitted)). That is precisely what the district court in this case and the Eleventh Circuit concluded in rejecting Hallett’s reasoning. See Thomas v. Bryant, 614 F.3d 1288, 1320 (11th Cir. 2010) (“[T]he ‘current and ongoing’ requirement is distinct from the standard governing the initial entry of injunctive relief.”); Porter, 290 F. Supp. 3d at 537 (“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.”).
Congress’s decision to use the “current and ongoing” language in Section 3626(b)(3), but not in Section 3626(a)(1), also undermines the argument by State Defendants and our colleague in dissent that the phrase “necessary to correct” in Section 3626(a)(1) precludes the award of prospective relief when a constitutional violation no longer exists. Construing the phrase “necessary to correct” as demanding a “current and ongoing” violation would render redundant the phrase “current and ongoing” violation in Section 3626(b)(3), as that provision also requires that the court find the prospective relief “necessary to correct.” But “[g]eneral principles of statutory construction require a court to construe all parts to have meaning and to reject constructions that render a term redundant.” PSINet, Inc. v. Chapman, 362 F.3d 227, 232 (4th Cir. 2004) (citing Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979)).
Further supporting Plaintiffs’ construction of Section 3626(a)(1) is the wellestablished rule that courts “should not construe a statute to displace courts’ traditional
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equitable authority absent the clearest command or an inescapable inference to the contrary.” Miller v. French, 530 U.S. 327, 340 (2000). Congress’s use of “current and ongoing” in Section 3626(b)(3) demonstrates that it knew how to “clear[ly] command” that courts may not use their equitable authority in the case of a violation that is not “current and ongoing.” Because Congress chose not to use that language or similar language, we will not construe Section 3626(a)(1) as displacing courts’ equitable authority to initially impose prospective relief, even when a violation is not “current and ongoing.”
III. Without question, “[m]aintaining safety and order at [a detention center] requires the expertise of correctional officials, who must have substantial discretion to devise reasonable solutions to the problems they face.” Florence, 566 U.S. at 326. At the same time, one of the “essential principle[s]” protected by the Eighth Amendment is that “the State must respect the human attributes even of those who have committed serious crimes.” Graham v. Florida, 560 U.S. 48, 59 (2010). The challenged conditions on Virginia’s death row deprived inmates of the basic human need for “meaningful social interaction and positive environmental stimulation.” Amici Br. at 4. The undisputed evidence established that that deprivation posed a substantial risk of serious psychological and emotional harm and that State Defendants were deliberately indifferent to that risk. Accordingly, we affirm the judgment of the district court.
AFFIRMED
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NIEMEYER, Circuit Judge, dissenting: In this case, Virginia death-row inmates are challenging conditions of confinement
that have not existed for over three years — raising a concern that this case could now be only advisory. Nonetheless, the district court sustained their challenge and ruled in February 2018 that pre-2015 death-row conditions violated the Eighth Amendment. Further, it entered an injunction prohibiting a return to those conditions.
Five inmates on Virginia’s death row commenced this action in 2014 challenging the conditions of confinement then in effect on death row — namely, that they were housed in 71 square-foot cells for 23 hours per day and allowed limited contact with other persons. Those restrictive conditions were imposed following serious incidents among death-row inmates in the 1980s and 1990s, when the inmates were allowed to congregate with each other for extended periods.
In early 2011, the newly appointed Director of the Virginia Department of Corrections (“VDOC”), Harold Clarke, decided to assess whether a new policy allowing death-row inmates to have more contact with others could again be offered. His endeavor was grounded in his professional belief that “enhancing offenders’ quality of life, when feasible, benefits staff and offenders alike.” During the next year or two, Director Clarke and David Robinson, VDOC’s second highest official, looked at confinement conditions imposed on death-row inmates in other states and concluded that some relaxation of restrictions could safely be implemented on Virginia’s death row. The decision to proceed with less restrictive conditions, however, was put on hold in late 2012, on the advice of VDOC’s lawyers, after one of the death-row inmates challenged
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the procedure by which he was automatically assigned to death row. That inmate obtained relief from the district court, but only for himself. While VDOC pursued a successful appeal of that case, other inmates on death row commenced this action against Director Clarke and the Warden of the Sussex I State Prison (collectively, “VDOC”) in November 2014, challenging more generally the conditions of confinement on death row, mainly under the Eighth Amendment’s Cruel and Unusual Punishments Clause. Despite the new litigation, however, Director Clarke decided in the spring of 2015 to move forward with his decision to change the conditions on death row. Thereafter, VDOC adopted new Operating Procedure 425.A, which substantially increased the contact that death-row inmates were allowed to have with their family members and each other and increased the inmates’ recreational opportunities. In addition, beginning in the fall of 2015, VDOC undertook a $2 million construction project, creating a new dayroom and a new outdoor recreation yard for the death-row inmates. The plaintiffs in this case now concede that the 2015 changes rendered the conditions on Virginia’s death row constitutional.
Nonetheless, the district court, at the plaintiffs’ urging, continued the litigation and issued a declaratory judgment that the prior conditions — the pre-2015 conditions at Sussex I — violated the inmates’ Eighth Amendment rights. And it also issued an injunction prohibiting VDOC from returning to the prior conditions.
VDOC has appealed the district court’s order, contending (1) that the prior conditions did not violate the Eighth Amendment and (2) that, in any event, there was no basis for the district court to have issued a declaratory judgment and an injunction,
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especially under the strict standards imposed for such relief by the Prison Litigation Reform Act of 1995 (“PLRA”), 18 U.S.C. § 3626. The majority surprisingly rejects VDOC’s modest arguments, concluding that despite the fact that the allegedly unconstitutional conditions have not existed on Virginia’s death row for some three-anda-half years, a prospective injunction should nonetheless be affirmed.
The record in this case clearly indicates that the entry of equitable relief was inappropriate because there was absolutely no reason to expect that VDOC was or is likely to return to the former conditions, having (1) adopted a policy for change; (2) invested considerable amounts of time in making changes; (3) formally adopted new procedures and regulations; and (4) expended substantial amounts of money improving the physical conditions for the inmates. VDOC has stated that it does not intend to return to former conditions, with Director Clarke attesting to his belief that to do so would be a move in the “wrong direction.”
Moreover, the district court’s judgment is especially misguided in the face of the strict standards that Congress imposed in the PLRA for this type of litigation:
Prospective 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. 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. 18 U.S.C. § 3626(a)(1) (emphasis added). It simply cannot be claimed that the district court’s award of equitable relief in 2018 was “necessary to correct” a violation of a
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federal right when the 2015 changes had, by the plaintiffs’ own concession, already corrected the alleged violation and no new violation was in any way being threatened.
Failing to recognize and therefore correct the district court’s error in granting relief that was plainly unavailable, the majority proceeds further, reaching into the realm of advisory opinions to conclude that the pre-2015 conditions of confinement on Virginia’s death row violated the Eighth Amendment. In doing so, however, it remarkably ignores binding Fourth Circuit precedent.
It is readily apparent that the district court’s judgment and the majority’s affirmance cannot be seen as “the least intrusive means necessary to correct the [alleged] violation.” 18 U.S.C. § 3626(a)(1).
I In the 1980s and 1990s, Virginia’s death-row inmates were housed in the Mecklenburg Correctional Center and allowed to congregate, eat, recreate, and work together. During that period, however, several serious incidents followed from such an “open housing” policy. In May 1984, six death-row inmates escaped, and it took weeks to recapture them all. The final two to be taken back into custody were serial murderers who were ultimately captured in Philadelphia. Moreover, while that manhunt was ongoing, prison officials discovered a “cache of homemade weapons and other contraband inside death row.” In 1988, two death-row inmates got into a fight, during which one inmate threw the other to the floor, knocking him unconscious. In 1992, a death-row inmate died from a heroin overdose. And in 1993, another death-row inmate
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committed suicide after smuggling contraband into the death-row unit. Following incidents such as these, VDOC moved death row to Sussex I State Prison and implemented more restrictive conditions of confinement, substantially limiting the inmates’ contacts with each other and with others. A VDOC official has noted that, since those changes were made, “there have been virtually no serious security-related incidents on death row.”
The death-row cells at Sussex I are essentially the same as the cells used to house the general prison population, except that death-row inmates do not share their cells with another inmate. Each cell measures 71 square feet, with a 10.5-foot high ceiling, and is furnished with a steel bed, a small shelf, a toilet, a sink, and a mirror. The restrictions on contacts, however, are more restrictive on death-row inmates than those imposed on the general prison population. At the time that the plaintiffs commenced this action, the conditions of confinement on death row were governed by Operating Procedure 460.A and Sussex I’s Institutional Rules and Regulations for Offenders, both of which became effective in early 2010. Under those procedures and regulations, inmates spent almost 23 hours a day in their cells, but they were permitted to have a television and CD player there. They were also allowed to purchase the same commissary items as generalpopulation inmates, to request materials from the prison’s library, and to order approved publications. They were allowed one hour of outdoor recreation five days per week, which they spent in individual enclosures slightly larger than their cells. During outdoor recreation, the inmates were separated but could converse with each other and coordinate their exercises. The inmates were also allowed to leave their cells for a ten-minute
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shower three times per week, and two inmates were permitted to perform the institutional jobs of houseman and barber. As for contacts with other persons — apart from the onehour recreational period — death-row inmates were permitted to make telephone calls from their cells seven days per week; to have noncontact visits with approved family members on weekends and holidays; to have contact visits with family members “when extreme circumstances exist[ed]”; to have face-to-face meetings with their attorneys in a room designated for that purpose; to have religious visits with the prison’s chaplain and other approved religious volunteers; and to converse with prison staff as they visited the unit. Specifically, corrections officers assigned to death row made rounds through the unit every 30 minutes to perform security checks, and during their rounds they often conversed with inmates. Medical personnel came through the unit twice each day to assess whether an inmate had a medical need that should be addressed by a physician. Nurses visited death row twice a day to distribute required medications. Mental health professionals visited the unit at least once per week, speaking with the inmates about any mental health issues and looking for signs of mental distress. Case counselors — staff members who helped the inmates with paperwork associated with prison life — visited the unit on a daily basis. And prison administrators, including the Warden and Assistant Warden, were encouraged to make rounds through death row on a weekly basis to check on the inmates’ welfare.
In late 2010, Harold Clarke was appointed the new Director of VDOC, and soon after his appointment he resolved to assess the existing policies and procedures “to determine whether and where more latitude might be afforded to Virginia’s death row
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offenders.” Based on his 35 years of experience, he believed that Virginia’s conditions of confinement satisfied the requirements of the Eighth Amendment, but he also believed that more relaxed policies could and should be applied, as he was convinced “that enhancing offenders’ quality of life, when feasible, benefits staff and offenders alike.” To this end, Director Clarke began discussing making changes to Virginia’s death row with David Robinson, who was at first the Regional Director responsible for Sussex I but soon after became the Chief of Corrections Operations, VDOC’s second highest official. After looking at the policies governing Nebraska’s death row, which Clarke had previously helped to oversee in his capacity as the head of that State’s corrections department, and after having conversations with a high-ranking prison official in Tennessee, Clarke and Robinson became convinced that VDOC could safely implement less restrictive conditions on Virginia’s death row.
Their efforts were interrupted, however, when one of the death-row inmates commenced an action challenging the procedures relating to his conditions of confinement, and VDOC’s lawyers advised Director Clarke not to make any changes to death row while the suit was ongoing. Although the district court ruled in the inmate’s favor in that case, we reversed the ruling. See Prieto v. Clarke, 780 F.3d 245 (4th Cir. 2015). Nonetheless, while that appeal was pending, other inmates commenced this action in November 2014, challenging their conditions of confinement under the Eighth and Fourteenth Amendments. Notwithstanding their litigation, however, Director Clarke decided to move forward with developing and implementing his plan to change the conditions on Virginia’s death row. He explained that he decided that VDOC “should
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move ahead and do what we thought, what we thought was the right thing to do, what we wanted to do all along.” And he decided to do so “despite the new lawsuit that had been filed by the present Plaintiffs” because VDOC “did not want to waste any additional time waiting for this litigation, too, to come to a conclusion.”
Thereafter, VDOC adopted new Rules and Regulations for Death Row Offenders and a new Operating Procedure 425.A, making a host of significant changes to the conditions of confinement. Under the new procedures and regulations, inmates were allowed to have contact visits with family members once per week; they were given an hour of indoor recreation every day, in addition to an hour and one-half of outdoor recreation; they were allowed to congregate on a limited basis in the outdoor recreation area; they were allowed to participate in a group behavioral program; and their showers were increased to every day and the time enlarged to fifteen minutes. In addition, VDOC spent approximately $2 million constructing a new inside dayroom and a new outdoor recreation yard, thereby enabling the inmates to congregate during both recreation periods. The new dayroom was equipped with a 60-inch television, two tables with seating, games of the type available to inmates in the general population, a kiosk from which inmates could send email and purchase music, and a telephone. The plaintiffs have conceded that these new 2015 conditions of confinement are constitutional.
Notwithstanding the improvements, the plaintiffs continued to press for a ruling that the prior conditions violated the Eighth Amendment, and they also continued to seek an injunction to prohibit VDOC from returning to the prior conditions. While VDOC clearly expressed its intent not to return to prior conditions, it refused to commit that it
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would never do so because it did not wish to preclude future changes, should changed circumstances require them. But Director Clarke explained emphatically that he did not “know of any situation today that will cause me to have to go back to where we came from. We will manage in place.” He explained his view that going back to the prior conditions would be “going [in] the wrong direction” and “going against what we espouse.”
On cross-motions for summary judgment, the district court ruled in 2018 that the pre-2015 conditions violated the Eighth Amendment. It held that “the pre-2015 conditions of confinement forced on plaintiffs created, at the least, a significant risk of substantial psychological and emotional harm” and that VDOC had been deliberately indifferent to that risk of harm. The court also concluded that the plaintiffs had demonstrated an entitlement to a declaratory judgment and injunctive relief, rejecting VDOC’s argument that the PLRA requires that there be an “ongoing violation” to justify such relief and instead concluding that the PLRA should be interpreted as consistent with “the background equitable rule that courts have the authority to issue prospective relief even in the absence of an ongoing violation.” Moreover, the court concluded that the plaintiffs had established a need for injunctive relief because (1) VDOC’s adoption of the new conditions was influenced in part by the litigation; (2) there were no legal barriers preventing VDOC from returning to the pre-2015 conditions; and (3) VDOC had declined to give a “nonreversion promise.”
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From the district court’s order dated February 21, 2018, VDOC filed this appeal, and the majority now affirms without engaging in any meaningful analysis of the most critical issue.
II While the main issue in this appeal is whether there is any basis to justify the issuance of a declaratory judgment and injunction prohibiting the State from returning to prior conditions, it is relevant to note that this court previously held that conditions similar to, or even more restrictive than, the prior conditions in this case did not violate the Eighth Amendment. See Mickle v. Moore, 174 F.3d 464, 471–72 (4th Cir. 1999) (holding that no violation of the Eighth Amendment was shown for conditions of confinement where inmates were confined to their cells for 23 hours per day without a radio or television, received “only five hours of exercise per week,” and were not allowed to “participate in prison work, school, or study programs”); Sweet v. S.C. Dep’t of Corr., 529 F.2d 854, 861 (4th Cir. 1975) (en banc) (“[I]solation from companionship, restriction on intellectual stimulation[,] and prolonged inactivity . . . will not render segregated confinement unconstitutional absent other illegitimate deprivations,” even if the “segregated confinement is prolonged and indefinite” (cleaned up)). The majority refuses to recognize these precedents, explaining that the record contains new academic literature that was not available when our precedents were decided. Ante at 13–15. But intervening academic literature does not empower a panel to overrule binding precedent.
43

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The majority also cites two Supreme Court cases in support of its refusal to apply Fourth Circuit precedents, but neither case provides any support. In Rhodes v. Chapman, 452 U.S. 337 (1981), the Court upheld conditions of confinement that involved doublecelling of inmates in 63-square-foot cells. And in Wilkinson v. Austin, 545 U.S. 209 (2005), where the Court was presented with a challenge to procedures for assigning inmates to a highly restrictive form of solitary confinement in Ohio, it held that inmates had a liberty interest in not being assigned to such confinement but that Ohio’s procedures were constitutional. Neither case can be cited to suggest that our prior cases need to be overruled or that analogous conditions violate the Eighth Amendment.
In short, the majority’s Eighth Amendment ruling is unprecedented and runs the risk of interfering with the wide use of supermax-type prisons, including the federal supermax prisons in Colorado and Illinois where conditions are more restrictive than those that were imposed on Virginia’s death row prior to the 2015 charges. For instance, at the U.S. Penitentiary ADX Florence, in Fremont County, Colorado, inmates are housed in solitary confinement without the ability to communicate with other inmates, either during the 23-hour period while they are in their cells or during a one-hour recreation period. And visits are more restricted than were visits to inmates on Virginia’s death row before 2015.
But my opinion does not rest on this disagreement with the majority. Rather, this disagreement only demonstrates how far afield the majority has moved in upholding the injunction against VDOC in the circumstances of this case, where the present conditions
44

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of confinement are concededly constitutional and the pre-2015 conditions would undoubtedly have been upheld under binding Fourth Circuit precedent.
With these preliminary observations made, I now turn to address the lack of any basis for the entry of equitable relief in the circumstances of this case.
III VDOC’s primary position on appeal is that the district court “should have dismissed this case for lack of a remedy.” It argues that the PLRA prohibits the entry of prospective relief “in the absence of any ongoing constitutional violation” and that, even under traditional principles governing equitable relief, there is no basis for awarding such relief here because there is not a “reasonable likelihood that the prior conditions of confinement will be reinstated.” VDOC emphasizes that “it is undisputed that the corrections officials have no intention of reinstating the old conditions” and argues that “[i]t is purely speculative that the district court’s injunction will serve any purpose other than forcing the corrections officials to return to court in order to vacate the injunction in two years,” as authorized by the PLRA. See 18 U.S.C. § 3626(b)(1). The Plaintiffs make a strained argument that the PLRA somehow only limits the “scope of an injunction” and therefore did not restrict the district court’s issuance of the injunction in this case. But in general they rely on the district court’s broad equitable discretion to grant injunctions. Congress enacted the PLRA “in 1996 in the wake of a sharp rise in prisoner litigation in the federal courts,” and the Act “contains a variety of provisions designed to
45

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bring this litigation under control.” Woodford v. Ngo, 548 U.S. 81, 84 (2006). As directly relevant here, “the PLRA attempt[ed] to eliminate unwarranted federal-court interference with the administration of prisons,” id. at 93, by “establish[ing] standards for the entry and termination of prospective relief in civil actions challenging prison conditions,” Miller v. French, 530 U.S. 327, 331 (2000).
Specifically, the PLRA provides that “[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.” 18 U.S.C. § 3626(a)(1)(A) (emphasis added). The term “prospective relief” is in turn defined as “all relief other than compensatory monetary damages.” Id. § 3626(g)(7). The Act provides further that “[t]he court shall not grant or approve any prospective relief unless the court finds that such relief [1] is narrowly drawn, [2] extends no further than necessary to correct the violation of the Federal right, and [3] is the least intrusive means necessary to correct the violation of the Federal right.” Id. § 3626(a)(1)(A) (emphasis added). In addition, if prospective relief is granted in the absence of such a finding by the court, the defendant is “entitled to the immediate termination of any prospective relief.” Id. § 3626(b)(2). Otherwise, prospective relief “shall be terminable upon the motion of any party or intervenor . . . 2 years after the date the court granted or approved [such] relief,” id. § 3626(b)(1), unless “the court makes written findings based on the record that prospective relief remains necessary to correct a current and ongoing violation of the Federal right, extends no further than necessary to correct the violation of the Federal
46

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right, and that the prospective relief is narrowly drawn and the least intrusive means to correct the violation,” id. § 3626(b)(3).
It is thus patently clear that under the PLRA, before a district court can grant equitable relief with respect to prison conditions, there must be a “violation of [a] Federal right” in need of correction. Yet, in this case, it is undisputed that VDOC had itself corrected the alleged Eighth Amendment violation more than two years before the district court awarded prospective relief. That should have ended the matter. Under the plain terms of the PLRA, the district court was barred from awarding prospective relief in the circumstances of this case.
The majority, however, fails to analyze meaningfully whether prospective relief was “necessary to correct” the Eighth Amendment violation alleged by the plaintiffs. Rather, it undertakes only to address and reject a linguistic argument made by VDOC in its brief, without addressing the explicit requirement of the PLRA itself that equitable relief, including an injunction, can only be issued “to correct [a] violation of [a] Federal right.” 18 U.S.C. § 3626(a)(1)(A).
Moreover, even on the untenable proposition implicitly maintained by both the district court and the majority that the PLRA adds nothing to the traditional equitable principles for issuing injunctions, the record shows that the conditions of confinement that prompted the plaintiffs to commence this action were highly unlikely to recur, thus eliminating any justification for the entry of an injunction.
The Supreme Court has long recognized that “[t]he sole function of an action for injunction is to forestall future violations.” United States v. Or. State Med. Soc’y,
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343 U.S. 326, 333 (1952). Thus, to obtain an injunction, there must be “a real threat of future violation or a contemporary violation of a nature likely to continue or recur.” Id. (emphasis added). In this type of “forward-looking action, . . . an examination of a great amount of archaeology is justified only when it illuminates or explains the present and predicts the shape of things to come.” Id. (cleaned up); see also City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983) (explaining that “[t]he equitable remedy [of an injunction] is unavailable absent a showing of irreparable injury, a requirement that cannot be met where there is no showing of any real or immediate threat that the plaintiff will be wronged again” (emphasis added)).
More specifically, in United States v. W.T. Grant Co., the Supreme Court recognized that there may be instances where a defendant cannot meet its burden of demonstrating that its voluntary cessation of its allegedly illegal conduct has mooted the case, but where — in light of the defendant’s changed conduct — the plaintiff also cannot meet its burden of establishing a need for an injunction. 345 U.S. 629, 633 (1953). In this type of circumstance, the Court made clear that plaintiffs have the burden of “satisfy[ing] the court that relief is needed” and that “[t]he necessary determination is that there exists some cognizable danger of recurrent violation, something more than the mere possibility which serves to keep the case alive.” Id. (emphasis added). Where the record discloses “no significant threat of future violation,” id. at 635, the plaintiff fails to carry its burden of establishing that injunctive relief is warranted.
In this case, it is especially curious that the district court could genuinely believe that there was a real threat of a future violation when it had previously observed in this
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litigation that VDOC had made “significant, costly, and concrete changes to numerous facets of plaintiffs’ conditions of confinement,” spending nearly $2 million on both outdoor and indoor recreation areas that were constructed specifically to allow death-row inmates to have congregate activities in a secure environment. The district court had also observed that the new operating procedure “reach[ed] almost every facet of inmate life.” And, in addition to those observations, the court had before it undisputed sworn statements by Director Clarke that he was committed to bringing meaningful changes to Virginia’s death row from early in his tenure, having previously overseen a less restrictive death-row environment in Nebraska.
Thus, the actions taken by VDOC “did not consist merely of pretentions or promises” but instead represented “an overt and visible reversal of policy, carried out by extensive operations which have every appearance of being permanent.” Or. State Med. Soc’y, 343 U.S. at 334. VDOC’s actions — especially when combined with the sworn statements from its top two officials that they believed such changes were in the best interests of both the inmates and the department — conclusively show that there was and is no “real threat” or “cognizable danger” that the alleged Eighth Amendment violation that prompted the plaintiffs to commence this action in 2014 will recur. Indeed, after years of successfully operating Virginia’s death row under the new conditions, it frankly borders on the preposterous to presume that, were it not for the district court’s injunctive relief, Director Clarke and his team would upend all the changes that they had made to Virginia’s death row and reimpose the precise combination of conditions challenged in this action.
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Presumably because of this overwhelming evidence, the majority affirms by choosing to defer blindly to the district court’s “factual” finding there was a “cognizable danger of recurrent violation.” But in doing so, the majority not only fails to recognize that such a finding is a mixed question of law and fact that justifies greater scrutiny by us, see W.T. Grant, 345 U.S. at 632, but it also accepts uncritically the three reasons given by the district court. A critical analysis, however, would quickly have undermined those reasons’ purported value.
First, the district court gave as a reason for the injunction that “there is no legal barrier to defendants’ returning to the pre-2015 conditions nor is there any preimplementation mechanism for plaintiffs to challenge such a return.” But that conclusion could hardly have been determinative of whether there was a real danger that VDOC would actually reinstate the challenged conditions. To be sure, the lack of any legal barrier or pre-implementation mechanism might explain why the plaintiffs would like to have injunctive relief, but it had next to no bearing on the likelihood that the corrections officials would indeed reinstitute the prior conditions of confinement in the absence of equitable relief.
Second, while acknowledging that the “defendants [had] individually state[d] [that] they [did] not currently intend to return to the pre-2015 conditions,” the district court emphasized that the “most persuasive” reason for an injunction was the prison officials’ “consistent refusal to represent to the Court that [VDOC would] not revert to the pre-2015 conditions.” Again, however, VDOC’s refusal to make such a commitment does not indicate that VDOC was therefore likely to return to the prior conditions.
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Indeed, Director Clarke stated under oath that he had no intent of doing so, testifying further that he believed that doing so would be “reversing course and going [in] the wrong direction.” His testimony and unwillingness to provide a promise was explained to be based only on his unwillingness to bind VDOC and future officials when they might in the future be faced with a serious breach in death row’s security. But yet, if such a breach were to occur, VDOC would then undoubtedly have a “legitimate penological justification” for making a change — a circumstance that the majority correctly recognizes would undermine any Eighth Amendment claim. Ante at 22.
Third and finally, the district court relied on the fact that “defendants’ change from the pre-2015 conditions of confinement to the current conditions was influenced, although not entirely dependent on, the current litigation.” To be sure, the record does indicate that once VDOC officials finally decided to begin implementing the longdiscussed changes to death row, they were incentivized to do so on an emergency basis to minimize their legal exposure in this action. But it does not follow that, having done the hard work of instituting the reforms, the corrections officials are likely to undo all their work in the absence of a court order.
In sum, fairly read, the record provides overwhelming evidence that VDOC made changes to the conditions of confinement on death row in the interest of both the inmates and the agency and that VDOC firmly believed that the changes were the right way to go. There is simply no indication of any intent by VDOC officials to return to the previous conditions, which they had resolved to change even before this litigation began. In light of these circumstances, it appears that the only reason for the district court’s injunction
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Case 1:14-cv-01588-LMB-IDD Document 240 Filed 05/06/19 Page 52 of 52 PageID# 4226 was some effort to punish VDOC for having previously had in place conditions that the district court believed had violated the Eighth Amendment. And the majority’s opinion affirming is thus counterproductive and totally unnecessary. I would reverse the district court’s judgment and remand with instructions to dismiss the plaintiffs’ action.
52

 
 Case: 1:14-cv-1588 As of: 06/11/2019 01:45 AM EDT 1 of 21
APPEAL,CLOSED
U.S. District Court Eastern District of Virginia − (Alexandria) CIVIL DOCKET FOR CASE #: 1:14−cv−01588−LMB−IDD

Porter et al v. Clarke et al Assigned to: District Judge Leonie M. Brinkema Referred to: Magistrate Judge Ivan D. Davis Case in other court: 4th circuit, 16−07044
4th Circuit, 18−06257 Cause: 42:1983 Prisoner Civil Rights
Plaintiff

Date Filed: 11/20/2014 Date Terminated: 02/21/2018 Jury Demand: None Nature of Suit: 555 Prison Condition Jurisdiction: Federal Question

Thomas Porter

represented by Victor Michael Glasberg Victor M. Glasberg & Associates 121 S. Columbus Street Alexandria, VA 22314 (703) 684−1100 Fax: 703−684−1104 Email: vmg@robinhoodesq.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeffrey E. Fogel 913 E. Jefferson Street Charlottesville, VA 22902 434−984−0300 Fax: 434−220−4852 Email: jeff.fogel@gmail.com ATTORNEY TO BE NOTICED

Steven David Rosenfield 913 East Jefferson St Charlottesville, VA 22902 434−984−0300 Email: attyrosen@aol.com ATTORNEY TO BE NOTICED

Plaintiff Anthony Bernard Juniper

represented by Victor Michael Glasberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeffrey E. Fogel (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Ivan Teleguz TERMINATED: 03/24/2016

represented by Victor Michael Glasberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeffrey E. Fogel (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Mark Lawlor

represented by Victor Michael Glasberg (See above for address)

Case: 1:14-cv-1588 As of: 06/11/2019 01:45 AM EDT 2 of 21

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeffrey E. Fogel (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Ricky Gray

represented by Victor Michael Glasberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeffrey E. Fogel (See above for address) ATTORNEY TO BE NOTICED

Defendant Harold W. Clarke

represented by Kate Elizabeth Dwyre Office of the Attorney General (Richmond) 900 E Main St Richmond, VA 23219 (804) 786−5630 Fax: (804) 786−4239 Email: kdwyre@oag.state.va.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Margaret Hoehl O'Shea Office of the Attorney General (Richmond) 202 North 9th Street Richmond, VA 23219 (804) 225−2206 Fax: (804) 786−4239 Email: moshea@oag.state.va.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Keith W. Davis TERMINATED: 03/24/2016

represented by Kate Elizabeth Dwyre (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Margaret Hoehl O'Shea (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant David Zook

represented by Kate Elizabeth Dwyre (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Margaret Hoehl O'Shea (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:14-cv-1588 As of: 06/11/2019 01:45 AM EDT 3 of 21

Interested Party The Rutherford Institute

represented by Timothy Lawrence Coffield Coffield PLC 106F Melbourne Park Circle Charlottesville, VA 22901 (434) 218−3133 Fax: (434) 321−1636 Email: tc@coffieldlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Interested Party
American Civil Liberties Union Foundation of Virginia, Inc.

represented by Claire Guthrie Gastanaga ACLU of Virginia 701 E. Franklin Street Suite 1412 Richmond, VA 23219 (804) 644−8022 Email: claire@acluva.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Hope Renee Amezquita American Civil Liberties Union of Virginia 701 E Franklin Street Suite 1412 Richmond, VA 23219 (804) 523−2151 Fax: (804) 649−2733 Email: hamezquita@acluva.org TERMINATED: 11/13/2017 LEAD ATTORNEY

Leslie Chambers Mehta American Civil Liberties Union of Virginia 701 E Franklin Street Suite 1412 Richmond, VA 23219 (804) 523−2152 Fax: (804) 649−2733 Email: lmehta@acluva.org TERMINATED: 01/25/2018 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gail Marie Deady Center for Reproductive Rights 199 Water Street 22nd Floor New York, NY 10038 (917) 637−3726 Fax: (917) 637−3666 Email: gdeady@reprorights.org TERMINATED: 04/30/2018

Date Filed 11/20/2014

# Docket Text
1 COMPLAINT against Harold C. Clarke, Keith W. Davis (Filing fee $ 400, receipt number 14683047796) filed by Thomas Porter, Anthony Bernard Juniper, Mark Lawlor, Ricky Gray, Ivan Teleguz. (Attachments: # 1 Civil Cover Sheet, # 2 Receipt)(jlan) (Entered: 11/21/2014)

Case: 1:14-cv-1588 As of: 06/11/2019 01:45 AM EDT 4 of 21

11/20/2014 11/24/2014 11/24/2014 12/03/2014 12/03/2014 12/03/2014 12/03/2014
12/04/2014 12/04/2014 12/05/2014 12/05/2014 12/05/2014 12/05/2014 12/05/2014 12/05/2014 12/30/2014 01/05/2015 01/13/2015
01/13/2015 01/13/2015

2 Summons Issued to be served by SPS as to Harold C. Clarke, Keith W. Davis. (jlan) (Entered: 11/21/2014)
3 NOTICE of Appearance by Jeffrey E. Fogel on behalf of Ricky Gray, Anthony Bernard Juniper, Mark Lawlor, Thomas Porter, Ivan Teleguz (Fogel, Jeffrey) (Main Document 3 replaced on 11/26/2014) (jlan, ). (Entered: 11/24/2014)
4 NOTICE of Appearance by Steven David Rosenfield on behalf of Thomas Porter (Rosenfield, Steven) (Entered: 11/24/2014)
5 NOTICE of Appearance by Kate Elizabeth Dwyre on behalf of Harold C. Clarke, Keith W. Davis (Dwyre, Kate) (Entered: 12/03/2014)
6 NOTICE of Appearance by Margaret Hoehl O'Shea on behalf of Harold C. Clarke, Keith W. Davis (O'Shea, Margaret) (Entered: 12/03/2014)
7 MOTION to Change Venue by Harold C. Clarke, Keith W. Davis. (Dwyre, Kate) (Entered: 12/03/2014)
8 Memorandum in Support re 7 MOTION to Change Venue filed by Harold C. Clarke, Keith W. Davis. (Attachments: # 1 Exhibit Exhibit 1 − map displaying the physical locations of state correctional facilities within the Commonwealth of Virginia)(Dwyre, Kate) (Entered: 12/03/2014)
Notice of Correction: The filing user has been notified to file a Notice of Hearing Date or a Notice of Waiver of Oral Argument re 7 MOTION to Change Venue (jlan) (Entered: 12/04/2014)
9 Notice of Hearing Date re 7 MOTION to Change Venue (Dwyre, Kate) (Entered: 12/04/2014)
Set Deadlines as to 7 MOTION to Change Venue . Motion Hearing set for 1/30/2015 at 10:00 AM in Alexandria Courtroom 600 before District Judge Leonie M. Brinkema. (clar, ) (Entered: 12/05/2014)
10 NOTICE by Harold C. Clarke, Keith W. Davis of joint Waiver of Oral Argument (Dwyre, Kate) (Entered: 12/05/2014)
11 Joint MOTION for Entry of Consent Briefing Order by Harold C. Clarke, Keith W. Davis. (Dwyre, Kate) (Entered: 12/05/2014)
12 Memorandum in Support re 11 Joint MOTION for Entry of Consent Briefing Order filed by Harold C. Clarke, Keith W. Davis. (Attachments: # 1 Exhibit Exhibit 1 − Consent Briefing Order)(Dwyre, Kate) (Entered: 12/05/2014)
13 CONSENT BRIEFING ORDER. Signed by District Judge Leonie M. Brinkema on 12/5/14.(See Order for details). (gwalk, ) (Entered: 12/05/2014)
Motion Hearing set for 1/30/2015 at 10:00 AM in Alexandria Courtroom 600 before District Judge Leonie M. Brinkema as to 7 MOTION to Change Venue. (gwalk, ) (Entered: 12/05/2014)
14 Memorandum in Opposition re 7 MOTION to Change Venue filed by Ricky Gray, Anthony Bernard Juniper, Mark Lawlor, Thomas Porter, Ivan Teleguz. (Glasberg, Victor) (Entered: 12/30/2014)
15 Reply to 14 Memorandum in Opposition to Motion to Transfer Venue filed by Harold C. Clarke, Keith W. Davis. (Dwyre, Kate) (Entered: 01/05/2015)
16 MOTION Surreply in opposition to motion to transfer venue re 14 Memorandum in Opposition, 15 Reply, Set Motion and R&R Deadlines/Hearings by Ricky Gray, Anthony Bernard Juniper, Mark Lawlor, Thomas Porter, Ivan Teleguz. (Attachments: # 1 Exhibit Proposed Surreply)(Glasberg, Victor) (Entered: 01/13/2015)
17 ORDER granting 16 Motion for leave to file surreply in opposition to motion to transfer venue 6 . Signed by District Judge Leonie M. Brinkema on 1/13/15. (see order for further details). (gwalk, ) (Entered: 01/13/2015)
18 Reply to 15 Reply Surreply Opposing Transfer of Venue filed by Ricky Gray, Anthony Bernard Juniper, Mark Lawlor, Thomas Porter, Ivan Teleguz. (Glasberg, Victor)

Case: 1:14-cv-1588 As of: 06/11/2019 01:45 AM EDT 5 of 21

01/28/2015 02/04/2015 02/04/2015 02/05/2015 02/06/2015 02/24/2015 02/24/2015 02/24/2015 02/24/2015 02/24/2015 02/25/2015 03/02/2015 03/02/2015 03/19/2015 03/19/2015 03/20/2015
03/20/2015
03/31/2015

(Entered: 01/13/2015)
19 ORDER denying 7 Motion to Change Venue. Signed by District Judge Leonie M. Brinkema on 01/28/2015. (jlan) (Entered: 01/28/2015)
20 MOTION to Dismiss by Harold C. Clarke, Keith W. Davis. (Dwyre, Kate) (Entered: 02/04/2015)
21 Memorandum in Support re 20 MOTION to Dismiss filed by Harold C. Clarke, Keith W. Davis. (Dwyre, Kate) (Entered: 02/04/2015)
22 Notice of Hearing Date re 20 MOTION to Dismiss (Dwyre, Kate) (Entered: 02/05/2015)
Set Deadlines as to 20 MOTION to Dismiss . Motion Hearing set for 4/3/2015 at 10:00 AM in Alexandria Courtroom 600 before District Judge Leonie M. Brinkema. (clar, ) (Entered: 02/06/2015)
23 NOTICE by Harold C. Clarke, Keith W. Davis (Joint) of Waiver of Oral Argument on Motion for Entry of Consent Briefing Order (Dwyre, Kate) (Entered: 02/24/2015)
24 Joint MOTION for Entry of Consent Briefing Order by Harold C. Clarke, Keith W. Davis. (Dwyre, Kate) (Entered: 02/24/2015)
25 Memorandum in Support re 24 Joint MOTION for Entry of Consent Briefing Order filed by Harold C. Clarke, Keith W. Davis. (Attachments: # 1 Exhibit 1 − Consent Briefing Order)(Dwyre, Kate) (Entered: 02/24/2015)
26 Notice of Hearing Date Amended re 20 MOTION to Dismiss (Dwyre, Kate) (Entered: 02/24/2015)
27 Consent Briefing Order 24 Joint MOTION for Entry of Consent Briefing Order (See order for details). Signed by District Judge Leonie M. Brinkema on 02/24/2015. (jlan) (Entered: 02/25/2015)
Reset Deadlines as to 20 MOTION to Dismiss . Motion Hearing set for 4/17/2015 at 10:00 AM in Alexandria Courtroom 600 before District Judge Leonie M. Brinkema. (clar, ) (Entered: 02/25/2015)
28 Consent MOTION for Extension of Time to File Response/Reply as to 20 MOTION to Dismiss by Ricky Gray, Anthony Bernard Juniper, Mark Lawlor, Thomas Porter, Ivan Teleguz. (Attachments: # 1 Proposed Order)(Glasberg, Victor) (Entered: 03/02/2015)
29 ORDER granting 28 Motion for Extension of Time to File Response/Reply re 20 MOTION to Dismiss . Responses due by 3/20/2015; Replies due by 4/3/2015.Signed by District Judge Leonie M. Brinkema on 3/2/2015. (rban, ) (Entered: 03/03/2015)
30 STIPULATION of Dismissal Pursuant to F.R.C.P. 41(a)(1)(A)(ii) by Harold C. Clarke, Keith W. Davis. (Dwyre, Kate) (Entered: 03/19/2015)
31 So Ordered in re 30 Stipulation of Dismissal filed by Harold C. Clarke, Keith W. Davis. Signed by District Judge Leonie M. Brinkema on 03/19/2015. (jlan) (Entered: 03/20/2015)
32 Opposition PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION TO DISMISS filed by Ricky Gray, Anthony Bernard Juniper, Mark Lawlor, Thomas Porter, Ivan Teleguz. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3, # 4 Exhibit Exhibit 4, # 5 Exhibit Exhibit 5, # 6 Exhibit Exhibit 6, # 7 Exhibit Exhibit 7)(Glasberg, Victor) (Entered: 03/20/2015)
33 NOTICE by Ricky Gray, Anthony Bernard Juniper, Mark Lawlor, Thomas Porter, Ivan Teleguz re 32 Opposition, Praecipe (Declaration of Victor M. Glasberg Submitted) (Attachments: # 1 Exhibit Declaration of Victor M. Glasberg)(Glasberg, Victor) (Entered: 03/20/2015)
Set Deadline as to 20 MOTION to Dismiss. Motion Hearing set for 4/17/2015 at 10:00 AM in Alexandria Courtroom 600 before District Judge Leonie M. Brinkema. (jlan) (Entered: 03/31/2015)

Case: 1:14-cv-1588 As of: 06/11/2019 01:45 AM EDT 6 of 21

04/01/2015 04/03/2015 04/17/2015 04/17/2015 04/17/2015 04/17/2015 04/17/2015 04/17/2015 04/17/2015
04/21/2015 04/21/2015 04/21/2015 04/21/2015 04/21/2015

34 NOTICE by Ricky Gray, Anthony Bernard Juniper, Mark Lawlor, Thomas Porter, Ivan Teleguz Notice of Dismissal of Plaintiff Ivan Teleguez (Glasberg, Victor) (Entered: 04/01/2015)
35 Reply to 32 Opposition, filed by Harold C. Clarke, Keith W. Davis. (Dwyre, Kate) (Entered: 04/03/2015)
36 Motion to appear Pro Hac Vice by Yuri Fuchs and Certification of Local Counsel Victor M. Glasberg Filing fee $ 75, receipt number 0422−4413891. by Ricky Gray, Anthony Bernard Juniper, Mark Lawlor, Thomas Porter, Ivan Teleguz. (Glasberg, Victor) (Entered: 04/17/2015)
37 Motion to appear Pro Hac Vice by Elizabeth Catherine Lockwood and Certification of Local Counsel Victor M. Glasberg Filing fee $ 75, receipt number 0422−4413904. by Ricky Gray, Anthony Bernard Juniper, Mark Lawlor, Thomas Porter, Ivan Teleguz. (Glasberg, Victor) (Entered: 04/17/2015)
38 Motion to appear Pro Hac Vice by Kathryn Linde Marshall and Certification of Local Counsel Victor M. Glasberg Filing fee $ 75, receipt number 0422−4413914. by Ricky Gray, Anthony Bernard Juniper, Mark Lawlor, Thomas Porter, Ivan Teleguz. (Glasberg, Victor) (Entered: 04/17/2015)
39 Motion to appear Pro Hac Vice by Ryan Joseph Stephenson and Certification of Local Counsel Victor M. Glasberg Filing fee $ 75, receipt number 0422−4413923. by Ricky Gray, Anthony Bernard Juniper, Mark Lawlor, Thomas Porter, Ivan Teleguz. (Glasberg, Victor) (Entered: 04/17/2015)
40 Minute Entry for proceedings held before District Judge Leonie M. Brinkema:Motion Hearing held on 4/17/2015. Appearances of counsel. Defts' 20 MOTION to Dismiss is argued and DENIED.(order to follow) (Court Reporter A. Thomson.)(yguy) (Entered: 04/17/2015)
41 ORDER: For the reasons stated in open court, it is hereby ORDERED that defendants' Motion to Dismiss [Dkt. No. 20] be and is DENIED. Signed by District Judge Leonie M. Brinkema on 4/17/15. (yguy) (Entered: 04/17/2015)
42 SCHEDULING ORDER: Initial Pretrial Conference set for 5/6/2015 at 11:00 AM in Alexandria Courtroom 301 before Magistrate Judge Ivan D. Davis. Final Pretrial Conference set for 9/17/2015 at 10:00 AM in Alexandria Courtroom 600 before District Judge Leonie M. Brinkema. Discovery due by 9/11/2015. Signed by District Judge Leonie M. Brinkema on 4/17/15. (Attachments: # 1 Mag.Consent, # 2 Pretrial Notice)(yguy) (Entered: 04/20/2015)
43 ORDER granting 36 Motion to appear Pro Hac Vice by Yuri Fuchs and Certification of Local Counsel Victor M. Glasberg. Signed by District Judge Leonie M. Brinkema on 04/21/2014. (jlan) (Entered: 04/21/2015)
44 ORDER granting 37 Motion to appear Pro Hac Vice by Elizabeth Catherine Lockwood and Certification of Local Counsel Victor M. Glasberg. Signed by District Judge Leonie M. Brinkema on 04/21/2014. (jlan) (Entered: 04/21/2015)
45 ORDER granting 38 Motion to appear Pro Hac Vice by Kathryn Linde Marshall and Certification of Local Counsel Victor M. Glasberg. Signed by District Judge Leonie M. Brinkema on 04/21/2014. (jlan) (Entered: 04/21/2015)
46 ORDER granting 39 Motion to appear Pro Hac Vice by Ryan Joseph Stephenson and Certification of Local Counsel Victor M. Glasberg. Signed by District Judge Leonie M. Brinkema on 04/21/2014. (jlan) (Entered: 04/21/2015)
47 TRANSCRIPT of proceedings held on 4/17/2015, before Judge Leonie M. Brinkema, Court Reporter Anneliese Thomson, Telephone number 703−299−8595. NOTICE RE REDACTION OF TRANSCRIPTS:The parties have thirty(30) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.vaed.uscourts.gov Transcript may be viewed at the court public terminal or purchased through the court reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through

Case: 1:14-cv-1588 As of: 06/11/2019 01:45 AM EDT 7 of 21

04/29/2015 05/05/2015 05/06/2015
05/06/2015 05/07/2015
05/20/2015 06/05/2015 06/05/2015 06/08/2015 06/08/2015 06/12/2015 06/29/2015 07/02/2015 07/02/2015 07/02/2015 07/06/2015

PACER Redaction Request due 5/21/2015. Redacted Transcript Deadline set for 6/22/2015. Release of Transcript Restriction set for 7/20/2015.(thomson, anneliese) (Entered: 04/21/2015)
48 Proposed Consent Discovery Plan by Harold C. Clarke, Keith W. Davis.(Dwyre, Kate) (Entered: 04/29/2015)
49 ANSWER to Complaint by Harold C. Clarke, Keith W. Davis.(Dwyre, Kate) (Entered: 05/05/2015)
50 Minute Entry for proceedings held before Magistrate Judge Ivan D. Davis:Initial Pretrial Conference held on 5/6/2015. Appearance of counsel. Joint Discovery Plan approved as amended. Joint plan to be filed by close of business on 5/8/15. Order to follow. (jwil, ) (Entered: 05/06/2015)
51 Amended Proposed Discovery Plan by Harold C. Clarke, Keith W. Davis.(Dwyre, Kate) (Entered: 05/06/2015)
52 Order Rule 16(b) Scheduling Order − Pursuant to the Rule 16(b) Conference it is ordered that 1. All discovery shall be concluded by September 11, 2015.2. Disclosures under Fed. R. Civ. P. 26(a)(1) and (2), notices of depositions,interrogatories, requests for documents and admissions, and answers thereto shall not be filed except on order of the court, or for use in a motion or at trial. 3. The Amended Proposed Consent Discovery Plan filed by the parties is approved and shall control discovery to the extent of its application unless further modified by the Court. See Order for details. Signed by Magistrate Judge Ivan D. Davis on 05/07/2015. (jwil, ) (Entered: 05/07/2015)
53 CERTIFICATE of Service Plaintiffs' Rule 26(A)(1) Initial Disclosures by Victor Michael Glasberg on behalf of Ricky Gray, Anthony Bernard Juniper, Mark Lawlor, Thomas Porter, Ivan Teleguz (Glasberg, Victor) (Entered: 05/20/2015)
54 MOTION Motion For Entry of Consent Order and Waiver of Hearing by Ricky Gray, Anthony Bernard Juniper, Mark Lawlor, Thomas Porter, Ivan Teleguz. (Attachments: # 1 Proposed Order Proposed Consent Order)(Glasberg, Victor) (Entered: 06/05/2015)
55 Waiver of Waiver of Hearing of Motion for Entry of Consent Order by Ricky Gray, Anthony Bernard Juniper, Mark Lawlor, Thomas Porter, Ivan Teleguz (Glasberg, Victor) (Entered: 06/05/2015)
Notice of Correction: the original consent order needs to be filed with the clerks office in re 54 Motion For Entry of Consent Order and Waiver of Hearing. (jlan) (Entered: 06/08/2015)
56 ORDER granting 54 Motion For Entry of Consent Order. Signed by Magistrate Judge Ivan D. Davis on 06/08/2015. (jlan) (Entered: 06/09/2015)
57 CERTIFICATE of Service Objections to Defendants' Initial Request For Discovery by Victor Michael Glasberg on behalf of Ricky Gray, Anthony Bernard Juniper, Mark Lawlor, Thomas Porter, Ivan Teleguz (Glasberg, Victor) (Entered: 06/12/2015)
58 Certificate Regarding Discovery by Ricky Gray, Anthony Bernard Juniper, Mark Lawlor, Thomas Porter.(Glasberg, Victor) (Entered: 06/29/2015)
59 MOTION for Judicial Viewing by Ricky Gray, Anthony Bernard Juniper, Mark Lawlor, Thomas Porter. (Glasberg, Victor) (Entered: 07/02/2015)
60 Memorandum in Support re 59 MOTION for Judicial Viewing filed by Ricky Gray, Anthony Bernard Juniper, Mark Lawlor, Thomas Porter. (Attachments: # 1 Exhibit Raemiscxh article)(Glasberg, Victor) (Entered: 07/02/2015)
61 Notice of Hearing Date July 10, 2015 re 59 MOTION for Judicial Viewing (Glasberg, Victor) (Entered: 07/02/2015)
Set Deadlines as to 59 MOTION for Judicial Viewing . Motion Hearing set for 7/10/2015 at 10:00 AM in Alexandria Courtroom 600 before District Judge Leonie M. Brinkema. (clar, ) (Entered: 07/06/2015)

Case: 1:14-cv-1588 As of: 06/11/2019 01:45 AM EDT 8 of 21

07/06/2015 07/06/2015 07/07/2015 07/07/2015 07/08/2015 07/08/2015 07/09/2015 07/10/2015 07/17/2015
07/24/2015 07/24/2015 07/24/2015 07/28/2015 07/28/2015 07/28/2015 07/28/2015

62 Response to 59 MOTION for Judicial Viewing filed by Harold C. Clarke. (O'Shea, Margaret) (Entered: 07/06/2015)
63 ORDERED that 59 the Motion for Judicial Viewing will be resolved through a telephone conference on the record at 9:30 a.m. on Wednesday, July 8, 2015. Signed by District Judge Leonie M. Brinkema on 07/06/2015. (dvanm, ) (Entered: 07/06/2015)
64 Motion to appear Pro Hac Vice by Parker Davidson Thomson and Certification of Local Counsel Victor M. Glasberg Filing fee $ 75, receipt number 0422−4531616. by Ricky Gray, Anthony Bernard Juniper, Mark Lawlor, Thomas Porter, Ivan Teleguz. (Glasberg, Victor) (Entered: 07/07/2015)
65 CERTIFICATE of Service Plaintiffs' Supplemental Disclosures by Victor Michael Glasberg on behalf of Ricky Gray, Anthony Bernard Juniper, Mark Lawlor, Thomas Porter, Ivan Teleguz (Glasberg, Victor) (Entered: 07/07/2015)
66 ORDERED that the 59 Motion for Judicial Viewing be and is TAKEN UNDER ADVISEMENT. Signed by District Judge Leonie M. Brinkema on 07/08/2015. (jlan) (Entered: 07/08/2015)
67 ORDER granting 64 Motion for Pro hac vice. Signed by District Judge Leonie M. Brinkema on 7/8/15. (gwalk, ) (Entered: 07/08/2015)
68 MOTION Entry of Consent Order by Ricky Gray, Anthony Bernard Juniper, Mark Lawlor, Thomas Porter. (Attachments: # 1 Proposed Order)(Glasberg, Victor) (Entered: 07/09/2015)
69 CONSENT ORDER. Signed by District Judge Leonie M. Brinkema on 7/10/15. (See Order for details). (gwalk, ) (Entered: 07/10/2015)
70 TRANSCRIPT of proceedings held on 7/8/2015, before Judge Leonie M. Brinkema, Court Reporter Anneliese Thomson, Telephone number 703−299−8595. NOTICE RE REDACTION OF TRANSCRIPTS:The parties have thirty(30) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.vaed.uscourts.gov Transcript may be viewed at the court public terminal or purchased through the court reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER Redaction Request due 8/17/2015. Redacted Transcript Deadline set for 9/16/2015. Release of Transcript Restriction set for 10/15/2015.(thomson, anneliese) (Entered: 07/17/2015)
71 MOTION for Discovery Rule 35 Independent Mental Examination of Plaintiffs by Harold C. Clarke, Keith W. Davis. (O'Shea, Margaret) (Entered: 07/24/2015)
72 Memorandum in Support re 71 MOTION for Discovery Rule 35 Independent Mental Examination of Plaintiffs filed by Harold C. Clarke, Keith W. Davis. (Attachments: # 1 Exhibit Declaration of Dr. Saathoff)(O'Shea, Margaret) (Entered: 07/24/2015)
73 Notice of Hearing Date re 71 MOTION for Discovery Rule 35 Independent Mental Examination of Plaintiffs (O'Shea, Margaret) (Entered: 07/24/2015)
Set Deadlines as to 71 MOTION for Discovery Rule 35 Independent Mental Examination of Plaintiffs. Motion Hearing set for 7/31/2015 at 10:00 AM in Alexandria Courtroom 600 before District Judge Leonie M. Brinkema. (clar, ) (Entered: 07/28/2015)
74 Joint MOTION for Entry of Consent Order by Harold C. Clarke, Keith W. Davis. (Dwyre, Kate) (Entered: 07/28/2015)
75 Memorandum in Support re 74 Joint MOTION for Entry of Consent Order filed by Harold C. Clarke, Keith W. Davis. (Attachments: # 1 Exhibit 1 −Consent Order)(Dwyre, Kate) (Entered: 07/28/2015)
76 Waiver of Oral Argument 74 Joint MOTION for Entry of Consent Order by Harold C. Clarke, Keith W. Davis (Dwyre, Kate) Text Modified on 7/29/2015 To Reflect Correct Event Choice & Linkage(nhall). (Entered: 07/28/2015)

Case: 1:14-cv-1588 As of: 06/11/2019 01:45 AM EDT 9 of 21

07/30/2015 07/30/2015 07/30/2015 07/30/2015 07/30/2015 07/30/2015 07/31/2015 08/10/2015 08/10/2015 08/10/2015 08/10/2015 08/10/2015 08/12/2015
08/14/2015 08/14/2015 08/14/2015 08/14/2015

77 Joint MOTION For Entry of Consent Order by Harold C. Clarke, Keith W. Davis. (Dwyre, Kate) (Entered: 07/30/2015)
78 Memorandum in Support re 77 Joint MOTION For Entry of Consent Order filed by Harold C. Clarke, Keith W. Davis. (Attachments: # 1 Exhibit 1 − Consent Order)(Dwyre, Kate) (Entered: 07/30/2015)
79 Waiver of re 77 Joint MOTION For Entry of Consent Order by Harold C. Clarke, Keith W. Davis (Dwyre, Kate) (Entered: 07/30/2015)
80 Withdrawal of Motion by Harold C. Clarke, Keith W. Davis re 71 MOTION for Discovery Rule 35 Independent Mental Examination of Plaintiffs (Dwyre, Kate) (Entered: 07/30/2015)
81 ORDER granting 77 Joint Motion For Entry of Consent Order (See order for details). Signed by District Judge Leonie M. Brinkema on 07/30/2015. (jlan) (Entered: 07/30/2015)
83 ORDER in re 59 Motion for Judicial Viewing (see order for details). Signed by District Judge Leonie M. Brinkema on 07/30/2015. (jlan) (Entered: 07/31/2015)
82 CERTIFICATE of Service Notice of 30(b)(6) Deposition by Victor Michael Glasberg on behalf of Ricky Gray, Anthony Bernard Juniper, Mark Lawlor, Thomas Porter, Ivan Teleguz (Glasberg, Victor) (Entered: 07/31/2015)
84 MOTION to Stay and to Refer Remaining Issues to Mediation by Harold C. Clarke, Keith W. Davis. (O'Shea, Margaret) (Entered: 08/10/2015)
85 Memorandum in Support re 84 MOTION to Stay and to Refer Remaining Issues to Mediation filed by Harold C. Clarke, Keith W. Davis. (Attachments: # 1 Exhibit 1 − Affidavit of Harold Clarke)(O'Shea, Margaret) (Entered: 08/10/2015)
86 Notice of Hearing Date set for August 21, 2015 @ 10:00 a.m. re 84 MOTION to Stay and to Refer Remaining Issues to Mediation (O'Shea, Margaret) (Entered: 08/10/2015)
Set Deadlines as to 84 MOTION to Stay and to Refer Remaining Issues to Mediation. Motion Hearing set for 8/21/2015 at 10:00 AM in Alexandria Courtroom 600 before District Judge Leonie M. Brinkema. (clar, ) (Entered: 08/10/2015)
87 RESPONSE to Motion re 84 MOTION to Stay and to Refer Remaining Issues to Mediation filed by Ricky Gray, Anthony Bernard Juniper, Mark Lawlor, Thomas Porter. (Glasberg, Victor) (Entered: 08/10/2015)
88 ORDER granting 84 Motion to Stay. it is herebyORDERED that, with the exception of expert disclosures which must remain asscheduled, all activity and deadlines in this litigation be and are STAYED for 90 days during which the parties are directed to evaluate whether defendants' changes to plaintiffs' conditions of confinement are sufficient to resolve this litigation. If the parties do not agree, they must immediately schedule a mediation session with Judge Buchanan to try to resolve their differences. Signed by District Judge Leonie M. Brinkema on 8/12/2015. (see Order for details) (dvanm, ) (Entered: 08/12/2015)
89 MOTION to Extend Deadline for Serving Expert Witness Reports (Unopposed) by Harold C. Clarke, Keith W. Davis. (Dwyre, Kate) (Entered: 08/14/2015)
90 Memorandum in Support re 89 MOTION to Extend Deadline for Serving Expert Witness Reports (Unopposed) filed by Harold C. Clarke, Keith W. Davis. (Attachments: # 1 Order)(Dwyre, Kate) (Entered: 08/14/2015)
91 Waiver of re 89 MOTION to Extend Deadline for Serving Expert Witness Reports (Unopposed) by Harold C. Clarke, Keith W. Davis (Dwyre, Kate) (Entered: 08/14/2015)
92 ORDER, on consideration of defendants' unopposed motion for extension of time of up to one week, to 8/24/2015, within which to serve their expert witness reports, and it appearing that plaintiffs do not oppose this requested relief, it is hereby ORDERED that defendants' expert witness reports shall be served by 8/24/2015. Signed by District Judge Leonie M. Brinkema on 8/14/2015. (rban, ) (Entered: 08/14/2015)

Case: 1:14-cv-1588 As of: 06/11/2019 01:45 AM EDT 10 of 21

08/31/2015 08/31/2015 08/31/2015 08/31/2015 08/31/2015 08/31/2015 09/01/2015 09/01/2015 09/01/2015
09/01/2015 10/27/2015 11/06/2015 11/13/2015 11/13/2015
12/16/2015

93 MOTION Emergency Motion for Clarification by Ricky Gray, Anthony Bernard Juniper, Mark Lawlor, Thomas Porter, Ivan Teleguz. (Glasberg, Victor) (Entered: 08/31/2015)
94 Memorandum in Support re 93 MOTION Emergency Motion for Clarification filed by Ricky Gray, Anthony Bernard Juniper, Mark Lawlor, Thomas Porter, Ivan Teleguz. (Glasberg, Victor) (Entered: 08/31/2015)
95 MOTION to Expedite Motion to Expedite Consideration of Plaintiffs' Motion for Clarification by Ricky Gray, Anthony Bernard Juniper, Mark Lawlor, Thomas Porter, Ivan Teleguz. (Glasberg, Victor) (Entered: 08/31/2015)
96 Memorandum in Support re 95 MOTION to Expedite Motion to Expedite Consideration of Plaintiffs' Motion for Clarification filed by Ricky Gray, Anthony Bernard Juniper, Mark Lawlor, Thomas Porter, Ivan Teleguz. (Attachments: # 1 Exhibit Exhibit A)(Glasberg, Victor) (Entered: 08/31/2015)
97 Notice of Hearing Date set for September 4, 2015 re 94 Memorandum in Support, 93 MOTION Emergency Motion for Clarification (Glasberg, Victor) (Entered: 08/31/2015)
98 Waiver of re 94 Memorandum in Support, 93 MOTION Emergency Motion for Clarification Waiver of Hearing by Ricky Gray, Anthony Bernard Juniper, Mark Lawlor, Thomas Porter, Ivan Teleguz (Glasberg, Victor) (Entered: 08/31/2015)
Set Deadlines as to 93 MOTION Emergency Motion for Clarification . Motion Hearing set for 9/4/2015 at 10:00 AM in Alexandria Courtroom 600 before District Judge Leonie M. Brinkema. (clar, ) (Entered: 09/01/2015)
99 Response to 94 Memorandum in Support, 93 MOTION Emergency Motion for Clarification filed by Harold C. Clarke, Keith W. Davis. (Attachments: # 1 1 − Stipulation, # 2 2− Consent Order)(O'Shea, Margaret) (Entered: 09/01/2015)
100 ORDER granting 93 Emergency Motion for Clarification. ORDERED that the Stay Order 88 previously entered in this matter does not impair any plaintiff's ability to file a request to intervene in Prieto v. Clarke, No. 15−31, and any attempted intervention would not impact any intervening plaintiff's continued pursuit of the Eight Amendment issues presented in this pending litigation, irrespective of the outcome of Prieto v. Clarke. Signed by District Judge Leonie M. Brinkema on 9/1/2015. (rban, ) (Entered: 09/01/2015)
101 ORDER denying 95 Motion to Expedite. Signed by District Judge Leonie M. Brinkema on 9/1/2015. (rban, ) (Entered: 09/01/2015)
Set/Reset Hearings: Settlement Conference set for 11/6/2015 at 11:00 AM in Alexandria Courtroom 500 before Magistrate Judge Theresa Carroll Buchanan. (per TCB chambers) (tfitz, ) (Entered: 10/27/2015)
Minute Entry for proceedings held before Magistrate Judge Theresa Carroll Buchanan:Settlement Conference held on 11/6/2015. Appearances of counsel. Case did NOT settle. (per TCB chambers) (tfitz, ) (Entered: 11/06/2015)
102 STATUS REPORT (Joint) by Harold C. Clarke, Keith W. Davis. (O'Shea, Margaret) (Entered: 11/13/2015)
103 ORDER: The parties having filed a Joint Status Report [Dkt No. 102] to advise the Court that they contemplate filing dispositive motions in this action and having provided a proposed briefing and argument schedule for such dispositive motions, it is hereby ORDERED that any dispositive motions be filed no later than December 21, 2015, that opposition briefs be filed no later than January 11, 2016, that reply briefs be filed no later than January 22, 2016, and that oral argument on any dispositive motions be scheduled for 10:00 a.m. on Friday, January 29, 2016. Signed by District Judge Leonie M. Brinkema on 11/13/15. (yguy) (Entered: 11/13/2015)
104 Motion to appear Pro Hac Vice by William David Maxwell and Certification of Local Counsel Victor M. Glasberg Filing fee $ 75, receipt number 0422−4774987. by Ricky Gray, Anthony Bernard Juniper, Mark Lawlor, Thomas Porter, Ivan Teleguz. (Glasberg, Victor) (Entered: 12/16/2015)

Case: 1:14-cv-1588 As of: 06/11/2019 01:45 AM EDT 11 of 21

12/18/2015 12/21/2015 12/21/2015 12/21/2015 12/21/2015 12/21/2015
12/21/2015 12/21/2015 12/21/2015 12/21/2015 12/21/2015

105 ORDER granting 104 Motion to appear Pro Hac Vice by William David Maxwell and Certification of Local Counsel Victor M. Glasberg. Signed by District Judge Leonie M. Brinkema on 12/18/2015. (jlan) (Entered: 12/18/2015)
106 MOTION for Summary Judgment by Ricky Gray, Anthony Bernard Juniper, Mark Lawlor, Thomas Porter, Ivan Teleguz. (Glasberg, Victor) (Entered: 12/21/2015)
107 MOTION to Seal Exhibits to Memorandum in Support of Defendants' Motion for Summary Judgment by Harold C. Clarke, Keith W. Davis. (O'Shea, Margaret) (Entered: 12/21/2015)
108 Memorandum in Support re 107 MOTION to Seal Exhibits to Memorandum in Support of Defendants' Motion for Summary Judgment filed by Harold C. Clarke, Keith W. Davis. (Attachments: # 1 Proposed Order)(O'Shea, Margaret) (Entered: 12/21/2015)
109 MOTION for Summary Judgment by Harold C. Clarke, Keith W. Davis. (O'Shea, Margaret) (Entered: 12/21/2015)
110 Memorandum in Support re 109 MOTION for Summary Judgment filed by Harold C. Clarke, Keith W. Davis. (Attachments: # 1 Exhibit 1 − Affidavit of Harold W. Clarke, # 2 Exhibit 2 − Affidavit of A. David Robinson, # 3 Exhibit 3 − Affidavit of David Zook, # 4 Exhibit 4 − Affidavit of Tawanda Lyons, # 5 Exhibit 5 − Affidavit of Tama S. Celi, Ph.D, # 6 Exhibit 6 − Affidavit of Robert Grant, # 7 Exhibit 7 − Affidavit of Joycetine Boone, # 8 Exhibit 8 − Affidavit of Eleanor Witt (part 1 of 2), # 9 Exhibit 8 − Affdavit of Eleanor Witt (part 2 of 2), # 10 Exhibit 9 − Expert Report of Gregory B. Saathoff, M.D. (part 1 of 2), # 11 Exhibit 9 − Expert Report of Gregory B. Saathoff, M.D. (part 2 of 2), # 12 Exhibit 10 − Expert Report of D. Scott Dodrill, # 13 Exhibit 11 − Operating Procedure, 851.1, Visiting Privileges, # 14 Exhibit 12 − Operating Procedure 720.0, Access to Health Services, # 15 Exhibit 13 − Operating Procedure 720.2, Medical Screening, Classification, and Levels of Care, # 16 Exhibit 14 − Operating Procedure 802.1, Personal Property, # 17 Exhibit 15 − VDOC Institutional Property Matrix, # 18 Exhibit 16 − Operating Procedure 841.3, Offender Religious Programs, # 19 Exhibit 17 − Operating Procedure 861.3, Special Housing, # 20 Exhibit 18 − Marriage documents for T. Porter, # 21 Exhibit 19 − Offender Tracking pages for the week of 11/3/15, # 22 Exhibit 20 − Institutional job information for A. Juniper, # 23 Exhibit 21(a−i) − Photographs of death row, taken (July 2015) Filed Under Seal, # 24 Exhibit 22(a−e) − Photos of Death Row Housing Unit (December 2015) Filed Under Seal, # 25 Exhibit 23 − Opertating Procedure 460A, Security of Offenders under the Sentence of Death −Filed Under Seal, # 26 Exhibit 24 − Mental Health Records for A. Juniper − Filed Under Seal, # 27 Exhibit 25 − Mental Health Records for M. Lawlor − Filed Under Seal, # 28 Exhibit 26 − Mental Health Records for R. Gray − Filed Under Seal, # 29 Exhibit 27 − Mental Health Records for T. Porter − Filed Under Seal)(O'Shea, Margaret) (Entered: 12/21/2015)
111 MOTION to Seal Exhibits to Memorandum in Support of Plaintiffs' Motion for Summary Judgment by Ricky Gray, Anthony Bernard Juniper, Mark Lawlor, Thomas Porter. (Glasberg, Victor) (Entered: 12/21/2015)
112 Memorandum in Support re 111 MOTION to Seal Exhibits to Memorandum in Support of Plaintiffs' Motion for Summary Judgment filed by Ricky Gray, Anthony Bernard Juniper, Mark Lawlor, Thomas Porter. (Attachments: # 1 Proposed Order)(Glasberg, Victor) (Entered: 12/21/2015)
113 Amended MOTION to Seal Exhibits to Memorandum in Support of Plaintiffs' Motion for Summary Judgment by Ricky Gray, Anthony Bernard Juniper, Mark Lawlor, Thomas Porter. (Glasberg, Victor) (Entered: 12/21/2015)
114 Memorandum in Support re 113 Amended MOTION to Seal Exhibits to Memorandum in Support of Plaintiffs' Motion for Summary Judgment filed by Ricky Gray, Anthony Bernard Juniper, Mark Lawlor, Thomas Porter. (Attachments: # 1 Proposed Order)(Glasberg, Victor) (Entered: 12/21/2015)
115 Memorandum in Support re 106 MOTION for Summary Judgment filed by Ricky Gray, Anthony Bernard Juniper, Mark Lawlor, Thomas Porter. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4 (Part 1 of 3), # 5 Exhibit 4 (Part 2 of 3), # 6 Exhibit 4 (Part 3 of 3), # 7 Exhibit 5, # 8 Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8, # 11 Exhibit 9, # 12 Exhibit 10, # 13 Exhibit 11, # 14 Exhibit 12, # 15

Case: 1:14-cv-1588 As of: 06/11/2019 01:45 AM EDT 12 of 21

12/21/2015 12/22/2015 12/22/2015 12/23/2015 12/23/2015
12/23/2015 12/23/2015 12/23/2015 12/23/2015 12/23/2015 12/28/2015 12/28/2015 12/28/2015 01/11/2016
01/11/2016
01/22/2016

Exhibit 13, # 16 Exhibit 14, # 17 Exhibit 15, # 18 Exhibit 16, # 19 Exhibit 17, # 20 Exhibit 18)(Glasberg, Victor) (Entered: 12/21/2015)
116 ORDER granting 111 Motion to Seal (see order for details). Signed by District Judge Leonie M. Brinkema on 12/21/2015. (jlan) (Entered: 12/22/2015)
117 ORDER granting 113 Motion to Seal (see order for details). Signed by District Judge Leonie M. Brinkema on 12/21/2015. (jlan) (jlan) (Entered: 12/22/2015)
121 Sealed Documents in re 106 MOTION for Summary Judgment. (Attachments: # 1 Exhibit 11)(jlan) (Entered: 12/24/2015)
Notice of Correction re 106 MOTION for Summary Judgment The filing user has been notified to file a Notice of Hearing Date or a Notice of Waiver of Oral Argument. (kgra, ) (Entered: 12/23/2015)
Notice of Correction re 107 MOTION to Seal Exhibits to Memorandum in Support of Defendants' Motion for Summary Judgment The filing user has been notified to file a Notice of Hearing Date or a Notice of Waiver of Oral Argument. (kgra, ) (Entered: 12/23/2015)
Notice of Correction re 109 MOTION for Summary Judgment The filing user has been notified to file a Notice of Hearing Date or a Notice of Waiver of Oral Argument. (kgra, ) (Entered: 12/23/2015)
118 Waiver of re 107 MOTION to Seal Exhibits to Memorandum in Support of Defendants' Motion for Summary Judgment by Harold C. Clarke, Keith W. Davis (O'Shea, Margaret) (Entered: 12/23/2015)
119 Notice of Hearing Date re 109 MOTION for Summary Judgment (O'Shea, Margaret) (Entered: 12/23/2015)
120 Notice of Hearing Date set for 01/29/2016 re 106 MOTION for Summary Judgment (Glasberg, Victor) (Entered: 12/23/2015)
122 Sealed Document in re 110 Memorandum in Support. (Attachments: # 1 Exhibit 22, # 2 Exhibit 23, # 3 Exhibit 24 part 1 or 2, # 4 Exhibit 24 part 2 of 2, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit)(jlan) (Entered: 12/24/2015)
Set Deadlines as to 109 MOTION for Summary Judgment . Motion Hearing set for 1/29/2016 at 10:00 AM in Alexandria Courtroom 600 before District Judge Leonie M. Brinkema. (clar, ) (Entered: 12/28/2015)
Set Deadlines as to 106 MOTION for Summary Judgment . Motion Hearing set for 1/29/2016 at 10:00 AM in Alexandria Courtroom 600 before District Judge Leonie M. Brinkema. (clar, ) (Entered: 12/28/2015)
123 ORDER granting 107 MOTION to Seal Exhibits to Memorandum in Support of Defendants' Motion for Summary Judgment (see order for details). Signed by District Judge Leonie M. Brinkema on 12/28/2015. (jlan) (Entered: 12/28/2015)
124 Memorandum in Opposition re 109 MOTION for Summary Judgment of Defendants Clark et al. filed by Ricky Gray, Anthony Bernard Juniper, Mark Lawlor, Thomas Porter. (Attachments: # 1 Exhibit Hendricks declaration, # 2 Exhibit Alexander declaration, # 3 Exhibit Clark interrog. responses, # 4 Exhibit Juniper declaration, # 5 Exhibit Gray declaration, # 6 Exhibit Porter declaration, # 7 Exhibit Offender orientation manual)(Glasberg, Victor) (Entered: 01/11/2016)
125 RESPONSE in Opposition re 106 MOTION for Summary Judgment filed by Harold C. Clarke, Keith W. Davis. (Attachments: # 1 Exhibit Comparison of Offender Populations, # 2 Exhibit Clarke Supplemental Interrogatory Repsonse)(O'Shea, Margaret) (Entered: 01/11/2016)
126 Memorandum in Support re 106 MOTION for Summary Judgment Plaintiff's Reply Memorandum In Support Of Motion for Summary Judgment filed by Ricky Gray, Anthony Bernard Juniper, Mark Lawlor, Thomas Porter, Ivan Teleguz. (Glasberg, Victor) (Entered: 01/22/2016)

Case: 1:14-cv-1588 As of: 06/11/2019 01:45 AM EDT 13 of 21

01/22/2016
01/26/2016 01/29/2016 02/02/2016 02/08/2016
02/10/2016 02/10/2016 02/10/2016 02/10/2016 02/10/2016 02/10/2016 02/10/2016 02/10/2016

127 Rebuttal Brief re 109 MOTION for Summary Judgment filed by Harold C. Clarke, Keith W. Davis. (Attachments: # 1 Exhibit Report of J. Bryan, # 2 Exhibit 1983 Settlement Agreement, # 3 Exhibit 1983 Court Orders, # 4 Exhibit 1984 Contempt Motion, # 5 Exhibit 1985 Court Order, # 6 Exhibit Special Grand Jury Report, # 7 Exhibit 9/7/88 Major Offense Report, # 8 Exhibit 9/7/88 Serious Incident Report, # 9 Exhibit 12/17/80 Adjustment Report, # 10 Exhibit 6/3/81 Adjustment Report, # 11 Exhibit 11/27/85 Major Offense Report, # 12 Exhibit 11/27/85 Major Offense REport, # 13 Exhibit 6/13/93 Serious Incident Report, # 14 Exhibit 1/30/94 Serious Incident Report, # 15 Exhibit Newspaper articles, # 16 Exhibit 11/7/7 Disciplinary Report, # 17 Exhibit 11/25/08 Disciplinary Report, # 18 Exhibit 3/18/09 Disciplinary Report, # 19 Exhibit 1/23/09 Disciplinary Report)(O'Shea, Margaret) (Entered: 01/22/2016)
128 NOTICE by Ricky Gray, Anthony Bernard Juniper, Mark Lawlor, Thomas Porter re 115 Memorandum in Support,, of Plaintiff's Motion for Summary Judgment (Attachments: # 1 Exhibit Dep't of Justice Report, # 2 Exhibit President Obama editorial, # 3 Exhibit Wash. Post News Article, # 4 Exhibit George Will column)(Glasberg, Victor) (Entered: 01/26/2016)
129 Minute Entry for proceedings held before District Judge Leonie M. Brinkema:Motion Hearing held on 1/29/2016. Appearances of counsel. Pltfs' 106 MOTION for Summary Judgment and defts' 109 MOTION for Summary Judgment are argued in open court and TAKEN UNDER ADVISEMENT. (Court Reporter A. Thomson.)(yguy) (Entered: 01/29/2016)
130 NOTICE by Ricky Gray, Anthony Bernard Juniper, Mark Lawlor, Thomas Porter Plaintiff's Second Notice Of Supplemental Authority In Support Of Plaintiffs' Motion For Summary Judgment (Attachments: # 1 Exhibit New York Times Editorial)(Glasberg, Victor) (Entered: 02/02/2016)
131 TRANSCRIPT of proceedings held on 1/29/2016, before Judge Leonie M. Brinkema, Court Reporter Anneliese Thomson, Telephone number 703−299−8595. NOTICE RE REDACTION OF TRANSCRIPTS:The parties have thirty(30) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.vaed.uscourts.gov Transcript may be viewed at the court public terminal or purchased through the court reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER Redaction Request due 3/9/2016. Redacted Transcript Deadline set for 4/11/2016. Release of Transcript Restriction set for 5/9/2016.(thomson, anneliese) (Entered: 02/08/2016)
132 NOTICE by Ricky Gray, Anthony Bernard Juniper, Mark Lawlor, Thomas Porter Notice of Filing of Supplementary Authority (Attachments: # 1 Exhibit Declaration of Victor Glasber, Plus Attachments)(Glasberg, Victor) (Entered: 02/10/2016)
133 MOTION to Seal Exhibit by Harold C. Clarke, Keith W. Davis. (O'Shea, Margaret) (Entered: 02/10/2016)
134 Memorandum in Support re 133 MOTION to Seal Exhibit filed by Harold C. Clarke, Keith W. Davis. (Attachments: # 1 Exhibit A − Affidavit of A. David Robinson, # 2 Exhibit Proposed Order)(O'Shea, Margaret) (Entered: 02/10/2016)
135 Waiver of re 133 MOTION to Seal Exhibit by Harold C. Clarke, Keith W. Davis (O'Shea, Margaret) (Entered: 02/10/2016)
136 Notice of Filing Sealing Motion LCvR5(C) by Harold C. Clarke, Keith W. Davis re 133 MOTION to Seal Exhibit (O'Shea, Margaret) (Entered: 02/10/2016)
137 Sealed Attachment/Exhibit(s) re 133 MOTION to Seal Exhibit. (O'Shea, Margaret) (Entered: 02/10/2016)
138 ORDER granting 133 Motion to Seal. Signed by District Judge Leonie M. Brinkema on 02/10/2016. (jlan) (Entered: 02/10/2016)
139 MOTION re 109 MOTION for Summary Judgment by Harold C. Clarke, Keith W. Davis. (Attachments: # 1 Exhibit 1 − 6 photographs of death−row outdoor recreation unit (Filed Under Seal), # 2 Exhibit 2 − Affidavit of David Zook, # 3 Exhibit 3 − U.S.

Case: 1:14-cv-1588 As of: 06/11/2019 01:45 AM EDT 14 of 21

02/10/2016 02/10/2016 02/11/2016 02/12/2016 02/12/2016 02/12/2016 02/12/2016 02/16/2016 03/15/2016 03/24/2016
03/24/2016 03/24/2016
05/20/2016

Dept. of Justice, FBOP, Operation and Security of the Special Confinement Unit)(O'Shea, Margaret) (Entered: 02/10/2016)
140 Memorandum in Support re 139 MOTION re 109 MOTION for Summary Judgment filed by Harold C. Clarke, Keith W. Davis. (O'Shea, Margaret) (Entered: 02/10/2016)
141 Waiver of re 139 MOTION re 109 MOTION for Summary Judgment by Harold C. Clarke, Keith W. Davis (O'Shea, Margaret) (Entered: 02/10/2016)
142 RESPONSE to Motion re 133 MOTION to Seal Exhibit Plaintiffs' Response to Defendants' Motion to Supplement the Record filed by Ricky Gray, Anthony Bernard Juniper, Mark Lawlor, Thomas Porter. (Glasberg, Victor) (Entered: 02/11/2016)
143 MOTION to Strike 132 NOTICE, 128 NOTICE, 130 NOTICE, by Harold C. Clarke, Keith W. Davis. (O'Shea, Margaret) (Entered: 02/12/2016)
144 Memorandum in Support re 143 MOTION to Strike 132 NOTICE, 128 NOTICE, 130 NOTICE, filed by Harold C. Clarke, Keith W. Davis. (O'Shea, Margaret) (Entered: 02/12/2016)
145 Waiver of re 143 MOTION to Strike 132 NOTICE, 128 NOTICE, 130 NOTICE, Oral Argument by Harold C. Clarke, Keith W. Davis (O'Shea, Margaret) (Entered: 02/12/2016)
146 RESPONSE to Motion re 143 MOTION to Strike 132 NOTICE, 128 NOTICE, 130 NOTICE, filed by Ricky Gray, Anthony Bernard Juniper, Mark Lawlor, Thomas Porter. (Glasberg, Victor) (Entered: 02/12/2016)
147 ORDER denying 143 Motion to Strike; ORDERED that the record be consideredc omplete with respect to the parties' motions for summary judgment. The Court will not accept or consider any additional filings by either party pertaining to those motions. Signed by District Judge Leonie M. Brinkema on 02/16/2016. (jlan) (Entered: 02/16/2016)
148 ORDER granting 139 Motion to Supplement the Record. Signed by District Judge Leonie M. Brinkema on 3/15/16. (see order for further details). (gwalk, ) (Entered: 03/15/2016)
149 ORDER: It appears to the Court that defendant Harold W. Clarke has been incorrectly identified in the caption of this civil action as Harold C. Clarke. Additionally, it appears that defendant Keith W. Davis, whose name as stated by the caption may also be incorrect, is no longer a party to thisaction because he is no longer the Warden at Sussex I State Prison and has been replaced in that role by David Zook. To ensure the accuracy of the caption for this action, it is hereby ORDERED that by close of business on Wednesday, March 30,2016, the defendants file a proposed Order correcting the caption to reflect the correct names and statuses of the defendants inthis action. Signed by District Judge Leonie M. Brinkema on 3/24/16. (yguy) (Entered: 03/24/2016)
150 Response to 149 Order,, filed by Harold C. Clarke, Keith W. Davis. (Attachments: # 1 Proposed Order)(O'Shea, Margaret) (Entered: 03/24/2016)
151 So Ordered: The Court finds that the proper name of the defendant identified as "Harold C. Clarke" is Harold W. Clarke, the Director of the Virginia Department of Corrections. The Court also finds that the defendant identified in the Complaint as "Keith W. Davis," the warden of Sussex I State Prison, has been replaced by the current warden, David Zook. The Court therefore orders thefollowing: 1. The party−defendant named in the caption of this proceeding as "Harold C. Clarke" shall be corrected to "Harold W. Clarke." 2. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, David Zook, thecurrent warden of Sussex I State Prison, is hereby substituted, in his official capacity, as a party defendant to this action, replacing Keith W. Davis, who no longer holds that official position. 3. As corrected, the defendants to this action shall be "Harold W. Clarke" and "DavidZook.". Signed by District Judge Leonie M. Brinkema on 3/24/16. (yguy) (Entered: 03/24/2016)
152 ORDERED that within fourteen (14) days, defendants (1) provide an update as to the status of the regulations on death row, specifically explaining whether the interim regulations have been finalized, (2) submit additional photographs of the outdoor

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05/25/2016 05/25/2016 05/26/2016
06/03/2016 06/03/2016 06/03/2016 06/03/2016 06/03/2016 06/03/2016 06/07/2016 06/15/2016 06/23/2016
06/23/2016
07/08/2016 07/08/2016
07/08/2016

recreation yard that are labeled so that the Court can identify which part of the yard is shown in the photograph and what is in the yard,and (3) inform the Court of the amount of money the Virginia Department of Corrections has spent so far on the planning, construction, and implementation of the new regulations and facilities. (see order for details). Signed by District Judge Leonie M. Brinkema on 5/20/16. (yguy) (Entered: 05/20/2016)
153 MOTION Motion For Leave To Respond To Forthcoming Evidentiary Update By Defendants by Ricky Gray, Anthony Bernard Juniper, Mark Lawlor, Thomas Porter, Ivan Teleguz. (Glasberg, Victor) (Entered: 05/25/2016)
154 Waiver of Hearing On Motion For Leave To Respond To Forthcoming Evidentiary Update By Defendants by Ricky Gray, Anthony Bernard Juniper, Mark Lawlor, Thomas Porter, Ivan Teleguz (Glasberg, Victor) (Entered: 05/25/2016)
155 ORDER: The Court having received plaintiffs' Motion for Leave to Respond to Forthcoming Evidentiary Update by Defendants, and Waiver of Hearing [Dkt. No. 153] and having found good cause for the relief sought therein, plaintiffs' Motion is GRANTED, and it is hereby ORDERED that plaintiffs shall have fourteen (14) days from the receipt of defendants' forthcoming submission in which to respond to that submission.Signed by District Judge Leonie M. Brinkema on 5/26/16. (yguy) (Entered: 05/26/2016)
156 MOTION to Seal Exhibits by Harold W. Clarke, David Zook. (Attachments: # 1 Proposed Order)(O'Shea, Margaret) (Entered: 06/03/2016)
157 Notice of Filing Sealing Motion LCvR5(C) by Harold W. Clarke, David Zook re 156 MOTION to Seal Exhibits (O'Shea, Margaret) (Entered: 06/03/2016)
158 Sealed Attachment/Exhibit(s) re 156 MOTION to Seal Exhibits. (O'Shea, Margaret) (Entered: 06/03/2016)
159 Memorandum in Support re 156 MOTION to Seal Exhibits filed by Harold W. Clarke, David Zook. (O'Shea, Margaret) (Entered: 06/03/2016)
160 Waiver of re 156 MOTION to Seal Exhibits by Harold W. Clarke, David Zook (O'Shea, Margaret) (Entered: 06/03/2016)
161 Response to 152 Order,, filed by Harold W. Clarke, David Zook. (Attachments: # 1 Exhibit A − Affidavit of David Zook)(O'Shea, Margaret) (Entered: 06/03/2016)
162 ORDER granting 156 Motion to Seal. Signed by Magistrate Judge Ivan D. Davis on 06/07/2016. (jlan) (Entered: 06/07/2016)
163 Reply Plaintiffs' Reply To Defendants' Response To Court's Order Of May 20, 2016 filed by Ricky Gray, Anthony Bernard Juniper, Mark Lawlor, Thomas Porter, Ivan Teleguz. (Attachments: # 1 Exhibit Exhibit 1)(Glasberg, Victor) (Entered: 06/15/2016)
164 MOTION Motion For Leave To Supplement Plaintiffs' Response to Defendants' Evidentiary Submission by Ricky Gray, Anthony Bernard Juniper, Mark Lawlor, Thomas Porter, Ivan Teleguz. (Attachments: # 1 Exhibit Exhibit A)(Glasberg, Victor) (Entered: 06/23/2016)
165 ORDER granting 164 Motion for Leave to Supplement Plaintiffs' Response to Defendants' Evidentiary Submission; ORDERED that the Plaintiffs' Supplementary Evidentiary Submission [Dkt. No. 164−1] be and is made part of the record. Signed by District Judge Leonie M. Brinkema on 06/23/2016. (jlan) (Entered: 06/23/2016)
166 MEMORANDUM OPINION in re Motions for Summary Judgment. Signed by District Judge Leonie M. Brinkema on 07/08/2016. (jlan) (Entered: 07/08/2016)
167 ORDERED that Plaintiff's 106 Motion for Summary Judgment is DENIED AS MOOT, defendants' 108 Motion for Summary Judgment is GRANTED, and it is hereby ORDERED that final judgment be entered in favor of defendants Harold W. Clarke and David Zook pursuant to Fed. R. Civ. P. 58. Signed by District Judge Leonie M. Brinkema on 07/08/2016. (jlan) (Entered: 07/08/2016)
168 JUDGMENT. Entered by Clerk on 07/08/2016. (jlan) (Entered: 07/08/2016)

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169 NOTICE by Ricky Gray, Anthony Bernard Juniper, Mark Lawlor, Thomas Porter of Filing Documents (Attachments: # 1 Exhibit Ex Parte Murphy, # 2 Exhibit Peoples v. Annucci, # 3 Exhibit Nagourney article, # 4 Exhibit Rodriguez article, # 5 Exhibit Post editorial Feb. 21, 2016)(Glasberg, Victor) (Entered: 07/08/2016)
170 ORDERED that the Clerk STRIKE the exhibits accompanying plaintiffs' Praecipe [Dkt. Nos. 169−1−6] from the docket. Signed by District Judge Leonie M. Brinkema on 07/12/2016. (jlan) (Entered: 07/12/2016)
171 NOTICE OF APPEAL by Ricky Gray, Anthony Bernard Juniper, Mark Lawlor, Thomas Porter. Filing fee $ 505, receipt number 0422−5103684. (Glasberg, Victor) (Entered: 08/02/2016)
172 Transmission of Notice of Appeal to US Court of Appeals re 171 Notice of Appeal (All case opening forms, plus the transcript guidelines, may be obtained from the Fourth Circuit's website at www.ca4.uscourts.gov) (jlan) (Entered: 08/03/2016)
173 USCA Case Number 16−7044 4th circuit, Case Manager RJ Warren for 171 Notice of Appeal filed by Anthony Bernard Juniper, Ricky Gray, Mark Lawlor, Thomas Porter. (kgra, ) (Entered: 08/05/2016)
174 Published Opinion of USCA re 171 Notice of Appeal−Reversed and Remanded.(lcre, ) (Entered: 03/24/2017)
175 USCA JUDGMENT as to 171 Notice of Appeal filed by Anthony Bernard Juniper, Ricky Gray, Mark Lawlor, Thomas Porter. In accordance with the decision of this court, the judgment of the district court is reversed. This case is remanded to the district court for further proceedings consistent with the court's decision. (lcre, ) (Entered: 03/24/2017)
176 MOTION for Leave to File Discovery on Timing and Motivation of Changes on Death Row, and for Status Conference by Anthony Bernard Juniper, Mark Lawlor, Thomas Porter. (Attachments: # 1 Exhibit Proposed discovery)(Glasberg, Victor) (Entered: 04/17/2017)
Notice of Correction: The filing user has been notified to file a Notice of Hearing Date or a Notice of Waiver of Oral Argument re 176 MOTION for Leave to File Discovery on Timing and Motivation of Changes on Death Row, and for Status Conference. (jlan) (Entered: 04/17/2017)
177 USCA Mandate re 171 Notice of Appeal. The judgment of this court, entered March 24, 2017, takes effect today. (lcre, ) (Entered: 04/17/2017)
178 ORDERED that the parties appear for a status conference on 5/5/2017 at 10:00 a.m. Signed by District Judge Leonie M. Brinkema on 4/17/2017. (rban, ) (Entered: 04/17/2017)
Set Hearing: Status Conference set for 5/5/2017 at 10:00 AM in Alexandria Courtroom 600 before District Judge Leonie M. Brinkema. (rban, ) (Entered: 04/17/2017)
179 Notice of Hearing Date set for 05/05/2017 re 176 MOTION for Leave to File Discovery on Timing and Motivation of Changes on Death Row, and for Status Conference (Glasberg, Victor) (Entered: 04/17/2017)
Set Deadlines as to 176 MOTION for Leave to File Discovery on Timing and Motivation of Changes on Death Row, and for Status Conference. Motion Hearing set for 5/5/2017 at 10:00 AM in Alexandria Courtroom 600 before District Judge Leonie M. Brinkema. (clar, ) (Entered: 04/18/2017)
180 RESPONSE in Opposition re 176 MOTION for Leave to File Discovery on Timing and Motivation of Changes on Death Row, and for Status Conference filed by Harold W. Clarke, David Zook. (O'Shea, Margaret) (Entered: 05/01/2017)
181 Reply Plaintiffs' Reply Memorandum In Support Of Motion For Leave To Take Discovery filed by Ricky Gray, Anthony Bernard Juniper, Mark Lawlor, Thomas Porter. (Glasberg, Victor) (Entered: 05/03/2017)

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182 Minute Entry for proceedings held before District Judge Leonie M. Brinkema:Motion Hearing/Status Conference held on 5/5/2017. Appearances of counsel. Court is advised of case status. Pltf 176 MOTION for Leave to File Discovery on Timing and Motivation of Changes on Death Row, and for Status Conference is argued in open court and HELD IN ABEYANCE. (Court Reporter A. Thomson.)(yguy) (Entered: 05/05/2017)
183 ORDER: For the reasons stated in open court, it is hereby ordered that plaintiffs Motion and Supporting Memorandum for Leave to Take Discovery on Timing and Motivation of Changes on Death Row, and for Status Conference [Dkt No. 176] is HELD IN ABEYANCE and it is hereby ORDERED that the parties contact chambers to report the status of this civil action by May 19,2017. Signed by District Judge Leonie M. Brinkema on 5/5/17. (yguy) (Entered: 05/05/2017)
184 TRANSCRIPT of proceedings held on 5/5/2017, before Judge Leonie M. Brinkema, Court Reporter Anneliese Thomson, Telephone number 703−299−8595. NOTICE RE REDACTION OF TRANSCRIPTS:The parties have thirty(30) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.vaed.uscourts.gov Transcript may be viewed at the court public terminal or purchased through the court reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER Redaction Request due 6/8/2017. Redacted Transcript Deadline set for 7/10/2017. Release of Transcript Restriction set for 8/7/2017.(thomson, anneliese) (Entered: 05/09/2017)
185 ORDER − Plaintiff's Motion and Supporting Memorandum for Leave to Take Discovery on Timing and Motivation of Changes on Death Row, and for Status Conference [Dkt. No. 176] is GRANTED and it is hereby ORDERED that within fifteen (15) days defendants respond to plaintiffs' pending written discovery requests or file any objections and that all discovery be completed within sixty (60 days). Signed by District Judge Leonie M. Brinkema on 5/17/17. (gwalk, ) (Entered: 05/17/2017)
186 STIPULATION Re Various Supplemental Documents Produced by Defendants (Exhibits ##1−21) by Ricky Gray, Anthony Bernard Juniper, Mark Lawlor, Thomas Porter. (Glasberg, Victor) (Entered: 07/11/2017)
187 CERTIFICATE of Service Stipulation (re various supplemental documents produced by defendants (exhibits ##1−21) by Victor Michael Glasberg on behalf of Ricky Gray, Anthony Bernard Juniper, Mark Lawlor, Thomas Porter (Glasberg, Victor) (Entered: 07/11/2017)
188 ORDER − The time for additional discovery having concluded 185 , it appears this civil action is ripe for resolution. Accordingly, it is herebyORDERED that the parties meet and confer regarding a mutually agreeable briefingschedule and file that schedule for the Court's review within the next seven (7) days. Signed by District Judge Leonie M. Brinkema on 07/18/2017. (c/s as directed in Order)(dvanm, ) (Entered: 07/18/2017)
189 Response to 188 Order, Joint Proposed Briefing Schedule filed by Harold W. Clarke, David Zook. (Attachments: # 1 Proposed Order)(O'Shea, Margaret) (Entered: 07/25/2017)
190 Consent Briefing ORDER. See Order for details. Signed by District Judge Leonie M. Brinkema on 7/28/2017. (rban, ) (Entered: 07/28/2017)
191 STIPULATION (SISP Juvenile Unit vacated as of March 11, 2015) by Ricky Gray, Anthony Bernard Juniper, Mark Lawlor, Thomas Porter. (Glasberg, Victor) (Entered: 08/04/2017)
192 MOTION for Summary Judgment Plaintiffs' Supplement To And Renewed Motion For Summary Judgment by Ricky Gray, Anthony Bernard Juniper, Mark Lawlor, Thomas Porter. (Attachments: # 1 Appendix Appendix A, # 2 Exhibit Exhibit 1, # 3 Exhibit Exhibit 2, # 4 Exhibit Exhibit 3, # 5 Exhibit Exhibit 4, # 6 Exhibit Exhibit 5, # 7 Exhibit Exhibit 6, # 8 Exhibit Exhibit 7, # 9 Exhibit Exhibit 8, # 10 Exhibit Exhibit 9, # 11 Exhibit Exhibit 10, # 12 Exhibit Exhibit 11, # 13 Exhibit Exhibit 12, # 14 Exhibit Exhibit 13, # 15 Exhibit Exhibit 14, # 16 Exhibit Exhibit 15, # 17 Exhibit Exhibit 16, #

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08/25/2017 08/25/2017
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09/14/2017 09/15/2017
09/22/2017 09/22/2017 09/22/2017

18 Exhibit Exhibit 17, # 19 Exhibit Exhibit 18)(Glasberg, Victor) (Entered: 08/25/2017)
193 MOTION for Summary Judgment (Renewed) by Harold W. Clarke, David Zook. (O'Shea, Margaret) (Entered: 08/25/2017)
194 Memorandum in Support re 193 MOTION for Summary Judgment (Renewed) filed by Harold W. Clarke, David Zook. (Attachments: # 1 Exhibit 1 H. Clarke Deposition, # 2 Exhibit 2 Robinson Deposition, # 3 Exhibit 3 H. Rep. 104−21, # 4 Exhibit 4 Senate Hearing Testimony, # 5 Exhibit 5 OP 720.1, # 6 Exhibit 6 OP 720.2, # 7 Exhibit 7 OP 802.1, # 8 Exhibit 8 OP 730.2, # 9 Exhibit 9 OP 730.7, # 10 Exhibit 10 Responses to Discovery, # 11 Exhibit 11 Memo in Support MSJ, # 12 Exhibit 12 Response in Opposition, # 13 Exhibit 13 Reply Brief in Support MSJ)(O'Shea, Margaret) (Entered: 08/25/2017)
195 Notice of Hearing Date 9/29/17 at 10:00 a.m. re 193 MOTION for Summary Judgment (Renewed) (O'Shea, Margaret) (Entered: 08/25/2017)
Set Deadlines as to 193 MOTION for Summary Judgment (Renewed). Motion Hearing set for 9/29/2017 at 10:00 AM in Alexandria Courtroom 600 before District Judge Leonie M. Brinkema. (clar, ) (Entered: 08/28/2017)
196 Notice of Hearing Date set for September 29, 2017 re 194 Memorandum in Support,, 193 MOTION for Summary Judgment (Renewed) (Glasberg, Victor) (Entered: 08/29/2017)
SetDeadlines as to 193 MOTION for Summary Judgment (Renewed). Motion Hearing set for 9/29/2017 at 10:00 AM in Alexandria Courtroom 600 before District Judge Leonie M. Brinkema. (clar, ) (Entered: 08/30/2017)
197 Notice of Hearing Date set for September 29, 2017 re 192 MOTION for Summary Judgment Plaintiffs' Supplement To And Renewed Motion For Summary Judgment (Glasberg, Victor) (Entered: 08/30/2017)
Set Deadlines as to 192 MOTION for Summary Judgment Plaintiffs' Supplement To And Renewed Motion For Summary Judgment. Motion Hearing set for 9/29/2017 at 10:00 AM in Alexandria Courtroom 600 before District Judge Leonie M. Brinkema. (clar, ) (Entered: 08/31/2017)
Reset Deadlines as to 193 MOTION for Summary Judgment (Renewed), 192 MOTION for Summary Judgment Plaintiffs' Supplement To And Renewed Motion For Summary Judgment. Motion Hearing set for 9/29/2017 at 10:00 AM in Alexandria Courtroom 700 before District Judge Leonie M. Brinkema. (clar, ) (Entered: 09/05/2017)
198 Memorandum in Opposition re 193 MOTION for Summary Judgment (Renewed) filed by Ricky Gray, Anthony Bernard Juniper, Mark Lawlor, Thomas Porter. (Glasberg, Victor) (Entered: 09/14/2017)
199 Memorandum in Opposition re 192 MOTION for Summary Judgment Plaintiffs' Supplement To And Renewed Motion For Summary Judgment filed by Harold W. Clarke, David Zook. (Attachments: # 1 Exhibit 1 − Documents produced during discovery, # 2 Exhibit 2 − Deposition transcript of H.W. Clarke, 7.7.17, # 3 Exhibit 3 − Objs and Responses to Plaintiff's Supp. Discovery Requests, # 4 Exhibit 4 − Deposition transcript of A.D. Robinsion, 7.12.17, # 5 Exhibit 5 − Director's Executive Team meeting, 9.1.15)(O'Shea, Margaret) (Entered: 09/15/2017)
200 RESPONSE in Support re 192 MOTION for Summary Judgment Plaintiffs' Supplement To And Renewed Motion For Summary Judgment filed by Ricky Gray, Anthony Bernard Juniper, Mark Lawlor, Thomas Porter. (Glasberg, Victor) (Entered: 09/22/2017)
201 First MOTION for Leave to File STATEMENT OF POSITION AS AMICI CURIAE IN SUPPORT OF PLAINTIFFS RENEWED MOTION FOR SUMMARY JUDGMENT by Thomas Porter. (Amezquita, Hope) (Entered: 09/22/2017)
202 NOTICE of Appearance by Hope Renee Amezquita on behalf of Thomas Porter (Amezquita, Hope) (Main Document 202 replaced on 9/25/2017) (jlan, ). (Entered:

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09/22/2017 09/22/2017 09/22/2017 09/22/2017 09/25/2017
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09/22/2017)
203 First MOTION for Leave to File STATEMENT OF POSITION AS AMICI CURIAE IN SUPPORT OF PLAINTIFFS RENEWED MOTION FOR SUMMARY JUDGMENT by Thomas Porter. (Attachments: # 1 Exhibit)(Amezquita, Hope) (Entered: 09/22/2017)
204 NOTICE of Appearance by Timothy Lawrence Coffield on behalf of Thomas Porter (Coffield, Timothy) (Entered: 09/22/2017)
205 REPLY to Response to Motion re 193 MOTION for Summary Judgment (Renewed) filed by Harold W. Clarke, David Zook. (O'Shea, Margaret) (Entered: 09/22/2017)
206 ORDERED that the movants' Motion [Dkt. No. 203] be and is GRANTED; and it is further ORDERED that movants promptly file their Statement of Position. Signed by District Judge Leonie M. Brinkema on 09/22/2017. (jlan) (Entered: 09/22/2017)
207 Brief in Support STATEMENT OF POSITION OF THE AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF VIRGINIA, INC. AND THE RUTHERFORD INSTITUTE AS AMICI CURIAE filed by Thomas Porter. (Amezquita, Hope) (Entered: 09/25/2017)
208 NOTICE of Appearance by Leslie Chambers Mehta on behalf of Thomas Porter (Mehta, Leslie) (Main Document 208 replaced on 9/26/2017) (jlan, ). (Entered: 09/25/2017)
209 Minute Entry for proceedings held before District Judge Leonie M. Brinkema:Motion Hearing held on 9/29/2017. Appearances of counsel. Defts 193 MOTION for Summary Judgment (Renewed) and pltfs 192 MOTION for Summary Judgment Plaintiffs' Supplement To And Renewed Motion For Summary Judgment are argued and TAKEN UNDER ADVISEMENT. (Court Reporter A. Thomson.)(yguy) (Entered: 09/29/2017)
210 MOTION to Withdraw as Attorney by American Civil Liberties Union Foundation of Virginia, Inc.. (Amezquita, Hope) (Entered: 11/13/2017)
211 ORDER granting 210 Motion to Withdraw as Attorney. Attorney Hope Renee Amezquita terminated. Signed by District Judge Leonie M. Brinkema on 11/13/17. (gwalk, ) (Entered: 11/13/2017)
212 MOTION to Withdraw as Attorney by Anthony Bernard Juniper, Mark Lawlor, Thomas Porter, Ivan Teleguz. (Glasberg, Victor) (Entered: 11/18/2017)
213 So Ordered in re 212 Motion to Withdraw as Attorney. Signed by District Judge Leonie M. Brinkema on 11/20/2017. (jlan) (Entered: 11/20/2017)
214 MOTION to Supplement the Record re 193 MOTION for Summary Judgment (Renewed) by Harold W. Clarke, David Zook. (Attachments: # 1 Exhibit Press Release: Clarke Reappointed)(O'Shea, Margaret) (Entered: 12/22/2017)
215 Memorandum in Support re 214 MOTION to Supplement the Record re 193 MOTION for Summary Judgment (Renewed) filed by Harold W. Clarke, David Zook. (O'Shea, Margaret) (Entered: 12/22/2017)
216 Waiver of re 214 MOTION to Supplement the Record re 193 MOTION for Summary Judgment (Renewed) (Waive Oral Argument) by Harold W. Clarke, David Zook (O'Shea, Margaret) (Entered: 12/22/2017)
217 ORDER granting 214 Motion to Supplement the Record. Signed by District Judge Leonie M. Brinkema on 12/28/2017. (rban, ) (Entered: 12/28/2017)
218 MOTION to Withdraw as Attorney Leslie C. Mehta by American Civil Liberties Union Foundation of Virginia, Inc.. (Mehta, Leslie) (Entered: 01/25/2018)
219 ORDER granting 218 Motion to Withdraw as Attorney. Attorney Leslie Chambers Mehta terminated. Signed by District Judge Leonie M. Brinkema on 01/25/2018. (jlan) (Entered: 01/26/2018)
220 MEMORANDUM OPINION: For the reasons stated above, plaintiffs' Motion for Summary Judgment will be GRANTED and defendants' Motion for Summary

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02/21/2018
02/22/2018 02/22/2018 03/09/2018 03/13/2018 03/14/2018 03/15/2018 03/28/2018 03/28/2018 03/28/2018 03/28/2018 04/29/2018

Judgment will be DENIED by an appropriate Order to be issued with this Memorandum Opinion. Signed by District Judge Leonie M. Brinkema on 2/21/18. (yguy) (Entered: 02/21/2018)
221 ORDER: For the reasons stated in the accompanying Memorandum Opinion, plaintiffs' Renewed Motion for Summary Judgment [Dkt. No. 192] is GRANTED, defendants' Renewed Motion for Summary Judgment [Dkt. No. 193] is DENIED, and it is hereby ORDERED that the conditions of confinement on Virginia's death row at the initiation of this civil action be and are DECLARED unconstitutional cruel and unusual punishment; and it is further ORDERED that defendants and any successors be and are ENJOINED from returning to the pre−2015 conditions of confinement, except on an emergency basis, and specifically that defendants and any successors be and are ENJOINED from imposing on plaintiffs the combination of twenty−three hours per day alone in their cells, no contact visitation, no congregate recreation or programming, and only five hours per week of outdoor recreation in separate cages; and it is further ORDERED that defendants notify plaintiffs' counsel within forty−eight (48) hours of any reimposition of the pre−2015 conditions of confinement. Signed by District Judge Leonie M. Brinkema on 2/21/18. (yguy) (Entered: 02/21/2018)
222 MOTION for Extension of Time to File Application for Award of Fees and Costs by Anthony Bernard Juniper, Mark Lawlor, Thomas Porter. (Glasberg, Victor) (Entered: 02/22/2018)
223 ORDER granting 222 Motion for Extension of Time to File. ORDERED that the deadline to apply for an award of attorney's fees and costs be and is EXTENDED until May 16, 2018. Signed by District Judge Leonie M. Brinkema on 2/22/18. (klau, ) (Entered: 02/22/2018)
224 NOTICE of Appearance by Gail Marie Deady on behalf of American Civil Liberties Union Foundation of Virginia, Inc. (Deady, Gail) (Main Document 224 replaced on 3/12/2018) (jlan, ). (Entered: 03/09/2018)
225 NOTICE OF APPEAL as to 221 Order,,,, 220 Memorandum Opinion, by Harold W. Clarke, David Zook. Filing fee $ 505, receipt number 0422−5988758. (O'Shea, Margaret) (Entered: 03/13/2018)
226 Transmission of Notice of Appeal to US Court of Appeals re 225 Notice of Appeal (All case opening forms, plus the transcript guidelines, may be obtained from the Fourth Circuit's website at www.ca4.uscourts.gov) (jlan) (Entered: 03/14/2018)
227 USCA Case Number 18−6257 4th Circuit, Case Manager RJ Warren for 225 Notice of Appeal filed by Harold W. Clarke, David Zook. (acha, ) (Entered: 03/15/2018)
228 MOTION to Stay Consent Motion To Stay Filing of Application for Award of Fees and Costs Pending Appeal by Anthony Bernard Juniper, Mark Lawlor, Thomas Porter. (Glasberg, Victor) (Entered: 03/28/2018)
229 Waiver of re 228 MOTION to Stay Consent Motion To Stay Filing of Application for Award of Fees and Costs Pending Appeal Waiver of Hearing by Ricky Gray, Anthony Bernard Juniper, Mark Lawlor, Thomas Porter (Glasberg, Victor) (Entered: 03/28/2018)
230 ORDER − 228 Motion to Stay is GRANTED and it is hereby ORDERED that the deadline to apply for an award of attorney's fees and costs be and is EXTENDED until ten weeks from the date of the Fourth Circuit's decision resolving defendants' appeal. Signed by District Judge Leonie M. Brinkema on 3/28/18. (gwalk, ) (Entered: 03/28/2018)
231 Transcript Order Acknowledgment from USCA re 227 USCA Case Number : Court Reporter/Transcriber Anneliese Thomson. (Attachments: # 1 Transcipt Order Deficiency Notice, # 2 Transcript Order)(acha, ) (Entered: 03/30/2018)
232 NOTICE of Appearance by Claire Guthrie Gastanaga on behalf of American Civil Liberties Union Foundation of Virginia, Inc. (Gastanaga, Claire) (Entered: 04/29/2018)

Case: 1:14-cv-1588 As of: 06/11/2019 01:45 AM EDT 21 of 21

04/29/2018 04/30/2018 05/25/2018
11/28/2018 05/03/2019 05/03/2019 05/06/2019 05/06/2019 05/17/2019

233 MOTION to Withdraw as Attorney by American Civil Liberties Union Foundation of Virginia, Inc.. (Attachments: # 1 Proposed Order)(Deady, Gail) (Entered: 04/29/2018)
234 ORDER granting 233 Motion to Withdraw as Attorney. Attorney Gail Marie Deady terminated. Signed by District Judge Leonie M. Brinkema on 04/30/2018. (jlan) (Entered: 04/30/2018)
235 TRANSCRIPT of proceedings for date of 9/29/17, before Judge Leonie M. Brinkema, re 225 Notice of Appeal Court Reporter Anneliese Thomson, Telephone number 703−299−8595. NOTICE RE REDACTION OF TRANCRIPTS:The parties have thirty(30) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.vaed.uscourts.gov Does this satisfy all appellate orders for this reporter? y Transcript may be viewed at the court public terminal or purchased through the court reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER Redaction Request due 6/25/2018. Redacted Transcript Deadline set for 7/25/2018. Release of Transcript Restriction set for 8/23/2018.(thomson, anneliese) (Entered: 05/25/2018)
236 ORDER of USCA as to 225 Notice of Appeal. The court grants the motion to withdraw from further representation on appeal. (jlan) (Entered: 11/28/2018)
237 Published Opinion of USCA, decided 05/03/2019 in re 225 Notice of Appeal; AFFIRMED. (jlan) (Entered: 05/03/2019)
238 USCA JUDGMENT as to 225 Notice of Appeal filed by Harold W. Clarke, David Zook. In accordance with the decision of this court, the judgment of the district court is affirmed. This judgment shall take effect upon issuance of this court's mandate in accordance with Fed. R. App. P. 41. (jlan) (Entered: 05/03/2019)
239 ORDER of USCA amending its opinion as to 225 Notice of Appeal filed by Harold W. Clarke, David Zook. (rban, ) (Entered: 05/06/2019)
240 PUBLISHED AMENED Opinion of USCA, decided 5/3/2019 re 225 Notice of Appeal, Affirmed(rban, ) (Entered: 05/06/2019)
241 Appeal Remark re 225 Notice of Appeal: The mandate is stayed pending further order of this court. (rban, ) (Entered: 05/17/2019)