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Solitary confinement ‘cruelty’ suit proceeds

Where incarcerated persons at two Virginia maximum security prisons alleged that solitary confinement deprived them of a basic human need, and that the risk of prolonged detention was obvious from the medical and scientific literature and a prior Fourth Circuit decision, they plausibly alleged a claim for cruel and unusual punishment in violation of the Eighth Amendment.


The plaintiffs in this putative class action are prisoners at two Virginia maximum security prisons that operate a phased program — called the step-down program — which purports to provide incentives to inmates in solitary confinement designed to lead to their eventual return to the general inmate population. The plaintiffs contend that the actual operation of the step-down program violates their rights under federal law and is in breach of a prior litigation settlement.

The defendants to this action, the Virginia Department of Corrections, or VDOC, and VDOC officials, filed motions to dismiss. The court referred these motions to the magistrate judge, who issued a report and recommendation, or R&R, to which all parties have timely filed objections.

Breach of contract

The complaint alleges the breach of a 1985 settlement agreement. The magistrate judge concluded that the agreement waived sovereign immunity in that it “request[ed] that the Court retain jurisdiction . . . to enforce compliance with this agreement.” Because Virginia has made no clear declaration that it consents to contract suits in federal court, nor that it authorized the signatories to execute such a waiver, the court finds that the agreement did not waive Virginia’s sovereign immunity to suit in federal court. Nor can this claim proceed against the individual defendants on other grounds.

Due process

The complaint alleges that VDOC deprived plaintiffs of their liberty interest in avoiding indefinite solitary confinement by using vague and subjective criteria to assign inmates to the intensive management, or IM, or special management, or SM, pathway, using arbitrary and unscientifically supported criteria to evaluate inmates’ progression to general population and denying them meaningful and periodic administrative review of their progression. It further claims that these policies have no valid penological purpose. The magistrate judge found that the plaintiffs plausibly alleged a due process claim. The court agrees.

Equal protection

The complaint alleges that VDOC violates the plaintiffs’ rights to equal protection by arbitrarily assigning prisoners with similar criminal and disciplinary records to different pathways by using malleable jargon and arbitrary criteria. The plaintiffs have also alleged an equal protection violation on behalf of a mentally disabled sub-class.

The complaint does not plausibly allege that inmates assigned to the IM and SM pathways are similarly situated. Since IM and SM prisoners are not the same there can be no equal protection action for the defendants’ alleged different treatment of these groups. The same pleading failure is fatal to the plaintiffs’ equal protection claim for the mentally disabled sub-class.

Cruel and unusual punishment

The magistrate judge concluded that the complaint adequately alleged the objective prong of an Eighth Amendment claim by asserting that the defendants deprived plaintiffs of a basic human need in long-term solitary confinement. Moreover, the plaintiffs plausibly alleged the subjective prong by claiming that the risk of prolonged detention in these conditions was obvious from the medical and scientific literature and the Fourth Circuit’s decision in Porter v. Clarke, 923 F.3d 348 (4th Cir. 2019). The court agrees.

Qualified immunity

The magistrate judge concluded that the individual defendants are not entitled to qualified immunity from money damages for the § 1983 claims against them in their individual capacities. With regard to the due process claim, the magistrate judge found that the plaintiffs alleged a violation of the right to “periodic review” of their detention status which was clearly established in 1983, and later recognized in the solitary confinement context. On the Eighth Amendment claim, the magistrate judge noted that a violation of “a prisoner’s rights to humane conditions of confinement and to avoid deprivations that were not motivated by any legitimate penological justifications were clearly established.” The court agrees.


The magistrate judge recommended dismissal of the Americans with Disabilities Act of 1990, or ADA, and Rehabilitation Act, or RA, claims against the individual defendants because those statutes only permit suit against entities and agencies of the government like VDOC. The magistrate judge recommended denying the VDOC’s motion to dismiss these claims because the complaint plausibly alleged a continuing violation. The court agrees.

The VDOC nevertheless argues the ADA and RA claims must be dismissed because plaintiffs failed to allege that they requested an accommodation. Although some circuits have stated that to succeed on a reasonable accommodation claim the “plaintiff must show that the entity knew of the disability and its consequential limitations, either because the plaintiff requested an accommodation or because the nature of the limitation was open and obvious,” the Fourth Circuit has not so required. In any event, plaintiffs have plausibly alleged the claim under intentional discrimination and disparate impact theories.

Defendants’ motions to dismiss granted in part, denied in part.

Thorpe v. Virginia Department of Corrections, Case No. 2:20-cv-00007, June 15, 2021. WDVA at Big Stone Gap (Jones). VLW 021-3-303. 28 pp.

VLW 021-3-303