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Immunity granted in suit brought by prisoner on autism spectrum

Where a prisoner on the autism spectrum was placed in solitary confinement without stimulation for extended periods of time in 2014 and 2015, prison officials were entitled to immunity against his suit because the law holding that the prison’s practice violates the Eighth Amendment was not clearly established at the time of his confinement.

Background

The Virginia Department of Corrections incarcerated Reginald Latson, a prisoner with autism spectrum disorder, intellectual disability, anxiety and depression, at Marion Correctional Treatment Center, or MCTC, from June 5, 2014, to Feb. 2, 2015. During that time, he spent 182 days in solitary confinement.

MCTC first placed Latson in solitary confinement to assess his risk level and, finding that he posed a security threat, kept him in solitary confinement for three and a half months. After his first 12 days in general population, Latson spit and cursed at a correctional officer and MCTC again placed him in solitary confinement, this time for two months. Latson then returned to general population.

When the Virginia governor granted Latson a conditional pardon, MCTC placed him back in solitary confinement for four days, ostensibly for his protection. Thereafter, MCTC provided Latson his own wing of the prison where he could freely access a television, phones and other stimulation. Latson remained in this wing until his release, about a week and a half later.

While in solitary confinement, MCTC kept Latson alone in a cell between 22 and 24 hours each day, with limited access to recreation, phone calls, personal items, television, music, books and magazines. Experts believe that incarceration in solitary confinement is counterproductive and increases aggressive responses for many prisoners, including those with autism spectrum disorder and for Latson himself.

Upon his release, Latson sued members of MCTC staff pursuant to 42 U.S.C. § 1983, alleging violations of his Eighth Amendment rights. After discovery, the district court granted summary judgment to the MCTC staff, concluding that the staff members were entitled to qualified immunity because their conduct did not violate any law clearly established at the time of Latson’s incarceration.

Analysis

Earlier this year, in Porter v. Clarke, we held that conditions similar to, and in some ways less draconian than, those imposed on Latson violated the Eighth Amendment. But this was not the state of the law at the time of Latson’s incarceration. Although no longer good law, at the time of Latson’s incarceration (2014-2015) we had held that long-term solitary confinement did not violate the Eighth Amendment.

Latson argues that MCTC staff nevertheless had fair notice of the unconstitutional nature of solitary confinement as applied to prisoners with mental disabilities, given a handful of district court opinions from outside this circuit. The argument fails. These decisions simply do not represent an “overwhelming consensus” of persuasive authority that clearly established and gave fair notice of an Eighth Amendment violation, particularly due to our contrary circuit authority at the time of the alleged violation. Accordingly, notwithstanding the dreadful conditions imposed on Latson, we can only conclude that MCTC staff are entitled to qualified immunity.

Latson also alleges that Harold Clarke, director of the Virginia Department of Corrections, failed to rectify Latson’s unconstitutional conditions of confinement at Rappahannock Regional Jail. It is undisputed that Clarke had the authority to transfer Latson from the jail to MCTC. Latson claims that Clarke knew of the unlawful conditions at the jail and yet failed to timely transfer Latson, thereby violating the Eighth Amendment.

Latson’s attorney spoke with Clarke about conditions in the jail. However, the record reveals no evidence about when the conversation occurred. Thus, Latson has offered no evidence that Clarke delayed in transferring him after learning of the jail’s conditions. Without proof that Clarke failed to appropriately remedy the situation, Latson’s claim must fail. The district court did not err in granting summary judgment to Clark.

Affirmed.

Latson v. Clarke, Appeal No. 18-2457, Dec. 18, 2019. 4th Cir. (per curiam), from WDVA at Abingdon (Jones). John Bell Williams III for Appellant, Jeff W. Rosen for Appellees. VLW 019-2-304. 8 pp.

VLW 019-2-304

Virginia Lawyers Weekly