WILLIAM THORPE; FREDERICK HAMMER; DMITRY KHAVKIN; GERALD MCNABB; GARY WALL; VERNON BROOKS; BRIAN CAVITT; DEREK CORNELISON; CHRISTOPHER COTTRELL; PETER MUKURIA; STEVEN RIDDICK; KEVIN SNODGRASS v. HAROLD CLARKE; RANDALL C. MATHENA; H. SCOTT RICHESON; A. DAVID ROBINSON; HENRY J. PONTON; MARCUS ELAM; DENISE MALONE; DR. STEVE HERRICK; TORI RAIFORD; JEFFREY KISER; CARL MANIS; VIRGINIA DEPARTMENT OF CORRECTIONS
No. 21-1714
United States Court of Appeals for the Fourth Circuit
June 14, 2022
PUBLISHED
Plaintiffs - Appellees,
v.
Defendants - Appellants,
and
VIRGINIA DEPARTMENT OF CORRECTIONS,
Defendant.
PROFESSORS AND PRACTITIONERS OF PSYCHIATRY AND PSYCHOLOGY; FORMER CORRECTIONS EXECUTIVES; RODERICK AND SOLANGE MACARTHUR JUSTICE CENTER
Amici Supporting Appellant.
Appeal from the United States District Court for the Western District of Virginia, at Big Stone Gap. James P. Jones, Senior District Judge. (2:20-cv-00007-JPJ-PMS)
Argued: January 25, 2022
Decided: June 14, 2022
Before GREGORY,
Affirmed by published opinion. Senior Judge Floyd wrote the opinion in which Chief Judge Gregory and Judge Thacker joined.
ARGUED: Margaret Hoehl O‘Shea, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellants. Vishal Mahendra Agraharkar, AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF VIRGINIA, Richmond, Virginia; Andrei Alexander Popovici, WHITE & CASE LLP, Washington, D.C., for Appellees. ON BRIEF: Mark R. Herring, Attorney General, K. Scott Miles, Deputy Attorney General, Michelle S. Kallen, Acting Solicitor General, Brittany M. Jones, Deputy Solicitor General, Laura H. Cahill, Assistant Attorney General, Rohiniyurie Tashima, John Marshall Fellow, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellants. Tara Lee, Daniel Levin, Kristen J.
FLOYD, Senior Circuit Judge:
In this putative class action, Plaintiffs allege that as prisoners at two of Virginia‘s supermax facilities, they have suffered severe isolation in violation of the U.S. Constitution. Supermaxes are maximum-security prisons designed to segregate the most dangerous prisoners from the general prison population. Their use has increased in recent decades, in part as a response to the rise in prison gangs and violence. And conditions in these prisons have long been recognized as “synonymous with extreme isolation.” Wilkinson v. Austin, 545 U.S. 209, 214 (2005). They deprive prisoners of nearly all environmental and sensory stimuli and of nearly all human contact for 22–24 hours a day.
Plaintiffs acknowledge that isolation has a place in today‘s prisons. But they object the Virginia Department of Corrections (VDOC) has not used its supermax facilities for any legitimate penological purposes. Instead, Plaintiffs claim, Virginia and its officers have warehoused prisoners in solitary, without any meaningful path back to general population, to justify the profligate costs of building and running those institutions. Plaintiffs now bring this action against VDOC and several of its officials for violating their
In response, Defendants focus on qualified immunity. Even if they committed the violations, Defendants posit, case law that existed in 2012, when their latest solitary-confinement program went into effect, simply did not put them on notice that either the conditions themselves or the procedures used to decide who belongs in them violated the Constitution. The problem for Defendants, however, is that they invoke qualified immunity at the motion to dismiss, before any of the evidence is in. And on the facts Plaintiffs have pleaded, Defendants cannot succeed: On the
Defendants’ contentions boil down to disagreements over the facts: what they knew and when, and what procedures they offered in practice. But at this stage, we take Plaintiffs’ allegations as true and affirm the district court‘s denial of the motion to dismiss.
I.
Plaintiffs are prisoners living in long-term solitary confinement—some as long as 24 years—in Red Onion and Wallens Ridge State Prisons VDOC operates. They bring this action for declarative and injunctive relief as well as damages against VDOC and several corrections officers who created and administered their segregation program. Plaintiffs also seek to represent a class of similarly situated prisoners. But this appeal comes to us at an early stage: the district court‘s denial of Defendants’ motion to dismiss. Well-pleaded allegations establish the following facts.
All Plaintiffs were originally sentenced to confinement in general population but were at some point assigned to either Red Onion or Wallens Ridge. VDOC built these supermaxes in the 1990s, six years after publishing a report that faulted a previous solitary facility, Mecklenburg, for using its confinement program to fill empty beds for economic, not penological purposes. Plaintiffs allege that Red Onion and Wallens Ridge have followed the same practices and for the same reasons. They point to several investigations and reports conducted by legislators and the U.S. Department of Justice that allegedly pressured VDOC in 2012 to introduce the Step-Down program to help progress prisoners to lower security levels through a system of incentives and periodic reviews. But even that program, Plaintiffs now maintain, runs roughshod over basic constitutional guardrails.
Step Down offers two pathways, Special Management (SM) and Intensive Management (IM). Both move prisoners through levels 0, 1, and 2 to a level called SL-6, whereupon VDOC maintains prisoners receive more freedoms, but Plaintiffs allege solitary confinement remains severe. The principal difference between IM and SM is that SM prisoners may one day be transferred to general population, provided they have no disciplinary infractions at SL-6, but IM prisoners may not—unless VDOC first reclassifies them as SM.
Plaintiffs allege concerning confinement conditions. They claim to spend 22-24 hours each day in cells smaller than a parking space. Steel doors, lined with solid strips, halt communication with others, and opaque windows obscure not just the outside but even the inside of the prison; bright lights stay on all day and night. Plaintiffs also claim to experience only perfunctory interactions with mental-health professionals and that VDOC‘s answer to threats of self-harm is to strip prisoners naked, strap them to a gurney, and feed them a liquid diet until they change their minds. As for out-of-cell time, Plaintiffs allege they receive just one hour of non-contact visitation per week, a shower three times a week, and one hour of exercise a day in a small cage—but they must agree to a cavity search each time they wish to leave their cells. VDOC then denies Plaintiffs all productive activities, save for the Challenge Series workbooks that are supposed to aid prisoners’ progress through
Plaintiffs also allege deficiencies in their status reviews. For both SM and IM designees, mill-run staff initially assess prisoners’ progress. Supervised by a Unit Manager and a Building Management Committee (BMC), which often consists solely of the same Unit Manager, the staff fill out weekly Status Rating Charts. A negative review on the charts often means prisoners have to restart at level 0. Yet prisoners do not receive a hearing, do not have access to the charts, and cannot appeal any re-start decisions. VDOC provides two other, “formal” reviews. The Institutional Classification Authority (ICA) conducts one, every 90 days. But the ICA, according to Plaintiffs, does not review prisoners’ “internal” progress through the program, only their “external” assignment to the supermax facilities. And it holds hearings that last only minutes and result in pre-filled, rote explanations such as “Remain Segregation.” J.A. 95. The External Review Team (ERT) conducts another review, but only for IM prisoners. Even then, the ERT provides no written decisions and reviews solely the original directive to place prisoners in IM.1
On top of this, Plaintiffs challenge the metrics corrections officers use to assess their progress through Step Down. They insist that individual officers have, by policy, unfettered discretion to retain, regress, or even restart prisoners in Step Down for reasons unrelated to any security concerns. As an example, Plaintiffs offer that even “prisoners who complete all nine volumes of the Challenge Series and remain free of all infractions have been forced to restart the program for failure to meet responsible behavioral goals, such as poor hygiene or disrespect.” Id. at 89. On the flip side, Plaintiffs claim VDOC has refused to harness available tools based in science and research that can help curb aggressive behavior without inflicting severe mental harms. Altogether, Plaintiffs argue officials designed Step Down to stock enough prisoners in Red Onion and Wallens Ridge to justify the cost of constructing those impressive facilities—exactly what VDOC said it would not do after Mecklenburg.
Believing their confinement conditions violate the
Defendants moved to dismiss for failure to state a claim and on grounds of qualified immunity. The district court declined. On qualified immunity, it reasoned that “when
II.
We review the district court‘s refusal to dismiss for qualified immunity de novo, Mays v. Sprinkle, 992 F.3d 295, 299 (4th Cir. 2021), bearing in mind that Defendants carry the burden to demonstrate that immunity, Henry v. Purnell, 501 F.3d 374, 378 (4th Cir. 2007). And we accept all Plaintiffs’ factual allegations as true. Ray v. Roane, 948 F.3d 222, 226 (4th Cir. 2020).
III.
The
Defendants agree Plaintiffs have adequately pleaded both those prongs to survive a motion to dismiss but urge the district court was wrong to deny them qualified immunity. Qualified immunity, too, has two prongs: Courts must decide whether a constitutional right was violated on the facts alleged and whether “the unconstitutionality of the officers’ conduct was clearly established.” Pearson v. Callahan, 555 U.S. 223, 227 (2009). Defendants, having already accepted that Plaintiffs satisfactorily pleaded an
Defendants rightly observe that we assess clearly established law at the time the wrong is committed, e.g., Mays, 992 F.3d at 301, and in that way, Porter could not strip them of immunity for acts committed before 2019. But they misapprehend the nature of the
A.
Qualified immunity fundamentally concerns itself with “fair notice.” Hope v. Pelzer, 536 U.S. 730, 739 (2002). It “shields an officer from suit when she makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the circumstances she confronted.” Taylor v. Riojas, 141 S. Ct. 52, 53 (2020) (quoting Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per curiam)). But this qualified immunity extends only as far as “the interest it protects.” Smith v. Wade, 461 U.S. 30, 55 (1983). Because “there is no societal interest in protecting those uses of a prison guard‘s discretion that amount to reckless or callous indifference to the rights and safety of the prisoners,” id., the immunity‘s cloak will not embrace them. As the familiar refrain goes, qualified immunity does not shield “those who knowingly violate the law.” al-Kidd, 563 U.S. at 743 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
These principles are not passive bystanders, rhetorical flourishes courts invoke after they have already decided on the outcome of a qualified-immunity request; they steer the analysis from the outset to reach the result most appropriate to the particular context before the court. Here, the
The controversy here follows the Ortiz blueprint to a tee. Hard as Defendants try to portray their arguments as questioning clearly established law, “the pre-existing law [is] not in controversy“: It has long been established that “prison official[s] may be held liable for deliberate indifference to a prisoner‘s
Far from settling the factual issues in Defendants’ favor, however, Plaintiffs’ allegations proffer evidence of a culpable mind. To start, the Complaint alleges each Plaintiff has suffered from “physical and mental harms,” including “depression, anxiety, Post-Traumatic Stress Disorder, schizoaffective disorder, psychosis, hallucinations, insomnia, hearing voices, agitation, mood swings, bouts of disorientation, and inability to concentrate, a rapid heartbeat, sweating, shortness of breath, [and] digestive problems.” J.A. 39. Some Named Plaintiffs have lost as much as “30 pounds while in solitary confinement.” Id. They are “often confused, frightened, isolated, and [ ] occasionally suicidal.” Id. And these symptoms “manifest in as little as 10 days.” Id. at 30. But Defendants comprise wardens, officers “responsible for the daily operations” of the two prisons, and professionals “responsible for supervising the mental-health services within VDOC” and “stabilization of the mentally ill.” See id. at 52. It is more than plausible that these Defendants, who for years have had daily contact with Plaintiffs, were both “aware of” the severe harms Plaintiffs have been suffering and could have “draw[n] the inference” that confining Plaintiffs to solitary existence caused those harms. Farmer, 511 U.S. at 837; see id. at 842 (“a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious“).
And the Complaint offers even more direct evidence of this “consciousness of risk,” id. at 840, when it comes to Defendants responsible for creating Step Down: the program trains on-the-ground officers to scout for “apathy, lethargy, [and] attention deficits,” “poor grooming,” “failure to maintain an orderly cell,” “failure to complete the Challenge Series,” “refusal to engage in programming,” “lack of impulse control,” problematic “attitude,” and “disrespect towards staff“—the very symptoms solitary confinement generates. J.A. 78; see also id. at 177, 186, 193 (Step-Down policy attached to Complaint).
The 100-page Complaint also suggests that Defendants had instituted similar solitary-confinement systems twice before
Also relevant are the independent expert studies that “had consistently documented the severe and often permanent damage caused by prolonged solitary confinement” in the years leading up to VDOC‘s promulgation of Step Down. See J.A. 102 (collecting journal articles). Even judicial precedent has long noted the deleterious effects of complete sensory deprivation. As far back as 1890, the Supreme Court recognized that prisoners subjected to such confinement exhibited a “semi-fatuous condition” and “violent[t] insan[ity]” and even died by suicide. In re Medley, 134 U.S. 160, 168 (1890). More recently, the Court reiterated the “severe” risks of contemporary solitary-confinement regimes that deprive prisoners of “almost all human contact.” Wilkinson, 545 U.S. at 223–24. And our own Circuit has observed 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, 791 F.3d at 534.
The Court has expressly sanctioned reliance on all such “circumstantial evidence” to prove that “a prison official had the requisite knowledge of a substantial risk” confinement conditions pose. Farmer, 511 U.S. at 842. Indeed, the “long duration” of the conditions itself may help establish intent. Seiter, 501 U.S. at 300 (citation omitted). Taken together, these allegations present far more than a mere “suggestion to the contrary” the Court has previously held sufficient to defeat summary judgment, let alone a motion to dismiss. See Farmer, 511 U.S. at 850. Nor can we “be certain,” this early on, “that additional evidence is unavailable” to Plaintiffs to
B.
Defendants advance no argument to defeat these long-accepted pleading practices. They ask instead that we shift frames and focus not on their mental state but on the first, objective prong of the
Defendants observe that it was not until Porter (2019) that this Court held solitary confinement “creates a substantial risk of psychological and emotional harm” “sufficient to justify the objective prong.” 923 F.3d at 361.4 On Defendants’ view, the Court largely rested its decision on “recent . . . advances in our understanding of psychology and new empirical methods,” which have allowed researchers to properly quantify the “severity of the adverse psychological effects attributable to prolonged placement of inmates in isolated conditions.” Id. at 355. And the Court set its decision apart from earlier ones like Sweet v. South Carolina Department of Corrections, 529 F.2d 854 (4th Cir. 1975), which it believed “lacked the benefit of the recent academic literature . . . concerning the harmful psychological and emotional effects of prolonged solitary confinement.” Porter, 923 F.3d at 358.
Defendants correctly observe Porter was the first case in this Circuit to hold severe isolation alone can deprive prisoners of “the minimal civilized measure of life‘s necessities,” violating the
Eventually, the district court will need to grapple with Porter. It will need to analyze whether these Defendants, like the
Defendants’ arguments were presumably inspired by how courts analyze qualified immunity in the
We recognize the Ninth Circuit takes a different tack, applying qualified immunity separately to each
Beyond these conceptual inconsistencies, the Ninth Circuit‘s approach writes the subjective inquiry out of the
C.
Reframing the argument yet again, Defendants additionally object we cannot define prisoners’ rights at too-high a level of generality. It is not enough, Defendants insist, to
say the law clearly prohibited a knowing disregard of a serious injury: “To be clearly established,” the law “must be sufficiently clear that every reasonable official would have understood that what he is doing violates” the
This argument suffers from the same flaw as Defendants’ call to sever the two
And we are not alone in this approach. As discussed, that is exactly how the Supreme Court analyzed the matter in Ortiz. See 562 U.S. at 190. Rather than looking for precedent exactly on point, the Court reasoned that “the pre-existing law was not in controversy” because it has long been established that a “prison official may be held liable for deliberate indifference to a prisoner‘s Eighth Amendment right to protection against violence while in custody if the official knows that the inmate faces a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.” Id. (citation omitted); see also Hope, 536 U.S. at 744-45 (qualified immunity does not shield government officials where they have “ignore[d]” a regulation “with impunity“). And while the Court has regularly insisted on highly particularized law in the
Insistence on finding precedent that held the same exact confinement conditions invalid also transforms the objective prong into something that it is not. The
In keeping with those principles, our precedent has focused on whether a prisoner “has come forward with ... evidence
All of this makes good sense—and not incidentally dovetails with the
IV.
Our analysis of due process entails a two-part inquiry, as well. We first determine whether Plaintiffs had a protectable liberty interest in avoiding security detention. See Burnette v. Fahey, 687 F.3d 171, 180 (4th Cir. 2012). We then evaluate whether Defendants failed to afford minimally adequate process to protect that liberty interest. Id. at 181. Defendants raise a qualified-immunity defense on both steps. We easily dispose of the first, because Supreme Court cases dating back to at least 2005 held materially indistinguishable
A.
“Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights,” but a prisoner‘s liberty does not disappear entirely. Price v. Johnston, 334 U.S. 266, 285 (1948). In our Circuit, prisoners retain a liberty interest in avoiding confinement conditions that impose “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life,” provided they can first establish that interest “arise[s] from state policies or regulations.” Incumaa, 791 F.3d at 526-27 (first quoting Sandin v. Conner, 515 U.S. 472, 484 (1995); then quoting Prieto v. Clarke, 780 F.3d 245, 249 (4th Cir. 2015)).
Because “uncontroverted evidence” establishes that Step Down mandates review at least once every 90 days, Defendants sensibly do not dispute that Plaintiffs have adequately traced their interest to state regulations. See Incumaa, 791 F.3d at 527. The parties quarrel instead over whether the solitary conditions are sufficiently harsh and atypical. We have no doubt that they are. We also have no doubt their harshness has been clearly established, for confinement conditions here are even more onerous than conditions the Supreme Court unanimously recognized gave rise to this liberty interest in 2005. See Wilkinson, 545 U.S. at 214-15. As in Wilkinson, Plaintiffs “must remain in their cells” for about “23 hours per day,” “have solid metal doors with metal strips along their sides and bottoms which prevent conversation or communication with other inmates,” have “rare” visitations “conducted through glass walls,” and must live—and sleep—with the light on “at all times.” Id. at 214. “Aside from severity of the conditions,” Plaintiffs’ placement “is for an indefinite period of time” and precludes parole. Id. at 214-15. Besides these deprivations the Court deemed sufficient in Wilkinson, Plaintiffs also cannot partake in “productive activities,” like art or education or voluntary work, must endure dehumanizing, daily cavity searches, and lose all “good time credit” they could have otherwise earned in general population. J.A. 71-73; see also Incumaa, 791 F.3d at 531 (reasoning that subjecting a prisoner “to a highly intrusive strip search every time he leaves his cell” significantly “worse[ns]” conditions Wilkinson already found trigger due process protections); Smith v. Collins, 964 F.3d 266, 281 (4th Cir. 2020) (confirming, after a 22-page discussion, that “there is at least a genuine issue of material fact” as to whether the current solitary confinement conditions in Wallens Ridge implicate a protected liberty interest established in Wilkinson).
Defendants raise two cursory objections in their opening brief. They first contend the conditions are not so onerous as those in Wilkinson because prisoners “have an opportunity to progress through to levels with increasingly greater privileges,” making solitary confinement here more comparable to the conditions in Beverati v. Smith, 120 F.3d 500, 504 (4th Cir. 1997),
Defendants finally suggest that while Wilkinson may have established a liberty interest in avoiding initial assignment to administrative segregation, it did not recognize an interest in being released from it. Nothing in Wilkinson turned on that distinction and, in any event, we have already confirmed in Incumaa that materially similar conditions give rise to a protected interest “in leaving” those conditions. See 791 F.3d at 534. Tellingly, Defendants do not discuss either of these arguments on reply.
We hold that by 2012, when VDOC instituted Step Down, case law had clearly established that solitary-confinement conditions comparable to those Plaintiffs allege here engendered a protected liberty interest under the
B.
Defendants also contest the district court‘s denial of qualified immunity on the second prong, which examines the process due. They draw primarily on Hewitt v. Helms, which concluded that “administrative segregation is the sort of confinement that inmates should reasonably anticipate receiving at some point in their incarceration” and, consequently, that “the Due Process Clause requires only an informal nonadversary review.” 459 U.S. 460, 468, 474 (1983). Beyond that “limited due process,” Defendants reason, no procedures have been clearly established, Baker v. Lyles, 904 F.2d 925, 930 (4th Cir. 1990), and the multiple formal and informal levels of review Step Down provides must certainly pass that bar.
At the outset, we observe that Hewitt considered a solitary-confinement period lasting less than two months, imposed to investigate the plaintiff‘s role in a prisoner riot. Hewitt‘s animating consideration—that prisoner “should reasonably anticipate” administrative confinement—thus does not translate seamlessly to today‘s practices of indefinitely confining prisoners to supermax facilities. See, e.g., Mims v. Shapp, 744 F.2d 946, 951-52 (3d Cir. 1984) (finding that the Mathews balancing Hewitt
Still, Defendants’ broader point is true enough—neither the Supreme Court nor this Circuit‘s precedent has clearly established the exact process prisoners must receive while in long-term administrative segregation. Wilkinson, for example, only upheld the review the prison provided; it did not establish a floor governing future cases. See 545 U.S. at 209, 216-17 (approving a “three-tier classification review process” that provided prisoners a 48-hour notice, mandated correction officers to disclose their reasons for recommending solitary placement and allowed prisoners to file written objections with the Bureau). On the opposite end of the spectrum, Incumaa allowed a prisoner‘s challenge to proceed where the supermax provided “only a single-layered confinement review” that, by regulation, did “not grant [prisoners] the right to contest the factual bases” for their continued solitary detention. 791 F.3d at 534-35. Neither case thus “definitively require[d]” a particular set of procedures. Halcomb v. Ravenell, 992 F.3d 316, 322 (4th Cir. 2021) (finding that our case law does not clearly mandate “prior” notice of segregation hearings).
But Defendants once again mistake Plaintiffs’ arguments. Plaintiffs do not challenge Step Down as failing to live up to Wilkinson‘s multitiered standard. Nor do they request any discrete procedures like advance notice, an opportunity to offer witnesses, or a possibility of appeal. They assert instead, similar to plaintiffs in Incumaa, that the program transgresses even the most foundational building blocks of due process: notice of the charges against them and an opportunity to be heard. That is, although Step Down offers multiple levels of review on paper, some occurring as frequently as every 30 days, not one of those reviews actually lives up to “basic” due process scrutiny. Incumaa, 791 F.3d at 533, 535 (rejecting defendants’ argument that periodic reviews per se satisfy Hewitt and Wilkinson where plaintiffs demonstrated “the inadequacy” of those reviews).
Consider, for example, Plaintiffs’ allegations that, by policy, only the so-called “formal” ICA and ERT hearings contemplate prisoner involvement of any kind—the “informal” BMC, prison-official, and counselor reviews do not provide any information to prisoners, much less involve them in the rating process. See J.A. 88, 92 (explaining that VDOC conducts these reviews “in secret, with no notice to the prisoner” and “does not permit prisoners to obtain a copy of their Status Rating Charts“). And that the formal reviews, however impressive they sound on paper, do nothing for Plaintiffs in practice. The ICA, they allege, holds hearings lasting only moments and issues pre-filled forms that merely document (rather than review) Plaintiff‘s previously determined progress through Step Down, doling out conclusory rationales such as “Remain Segregation” or “needs longer period of stable adjustment.” Id. at 94-95. Whereas the ERT examines only “the original decision to place the prisoner on the IM Pathway,” provides prisoners “no written explanation of its decisions,” and conducts hearings so rarely that “[m]any IM prisoners have never seen or heard of the ERT.” Id. at 97-98.
But if the
Defendants do not seriously argue they lacked notice of these basic due process requirements; they merely dispute Plaintiffs’ factual allegations and urge us to take judicial notice of several Step-Down provisions. But what we said about the motion-to-dismiss stage in the context of the
But Plaintiffs allege yet more. The kind of meaningful review Hewitt prescribes, they insist, contemplates that correction officers will use “institutional safety and security (or another valid administrative justification) as their guiding principles.” Proctor, 846 F.3d at 611. And although Hewitt appropriately recognized that periodic review must remain “flexible” to account for “a wide range of administrative considerations,” Plaintiffs observe the Court also held “administrative segregation may not be used as a pretext for indefinite confinement.” 459 U.S. at 472, 477 n.9. We agree. Hewitt afforded flexibility because the State has a “manifest interest in maintaining safe detention facilities.” Proctor, 846 F.3d at 611. And when a precarious situation ends, with it ends the State‘s authority to maintain prisoners in solitary confinement. See Hewitt, 459 U.S. at 477 n.9 (describing the periodic-review decision as “whether a prisoner remains a security risk“); Wilkinson, 545 U.S. at 226 (warning against placing prisoners in solitary confinement “for insufficient reason“); see also Kelly v. Brewer, 525 F.2d 394, 400 (8th Cir. 1975) (recognizing, as early as 1975, that the “validity” of administrative segregation under the
Yet Plaintiffs allege that Step Down placements rest on “reasons having nothing to do with” prisoners’ security risk and everything to do with justifying the two high-ticket supermaxes. J.A. 82. From the start, the policy advises corrections officers to rely primarily on prisoners’ “criminal history and lifestyle” as well as whether they “are incarcerated for a high profile and notorious crime” when deciding whether to assign prisoners to Red Onion or Wallens Ridge. Id. (citation omitted). Plaintiffs argue these considerations inappropriate because they were all sentenced to general population. Id. at 37. So rigid criteria based on prior criminal history cannot supply a penologically valid justification and evidence instead Defendants’ goals to fill more beds. See id. at 83-84.
At the next step, Plaintiffs claim VDOC‘s policy permits corrections officers to hold prisoners at the same level, regress them, or even force them to restart the entire program based on metrics unrelated to prison security like hygiene, rapport with guards, and respect—metrics corrections officers themselves have described as “very subjective” during depositions. Id. 87-91 (citation omitted). For example, Plaintiffs allege that “VDOC has required prisoners to restart the Step-Down Program for failure to shave their beard, use of ‘insolent language,’ ... [and] refusal to complete the Challenge Series” workbook. Id. at 90. And that “[p]risoners who cannot complete the workbook series because of educational background, learning disability, cognitive disability, mental illness, or language barrier are evaluated on the same criteria as prisoners without those disabilities or barriers.” Id. at 89. These shortcomings, Plaintiffs suggest, demonstrate Defendants are not interested in offering a meaningful pathway out of solitary; they seek instead to keep prisoners in segregation for as long as possible.
Finally, when it comes to formal reviews, Plaintiffs complain the ICA does not review the officers’ assessment of prisoners’ progress through Step Down, just their “external” placement in the supermax facilities. Id. at 94. But by regulation, successful completion of Step Down “is the only avenue” to general population. Id. at 95. The ICA review, Plaintiffs reason, thus amounts to “hollow” formalities. Proctor, 846 F.3d at 608.
If proven, such dissonance between legitimate penological goals and the processes Step Down institutes may lead a trier of fact to conclude Defendants designed the program for an improper purpose, like economic gain. See Selby, 734 F.3d at 560 (“Whether a given process is meaningful for the purposes of the Due Process Clause is a question of fact.” (citation omitted)). Because Hewitt plainly established, in 1983, that Defendants can do no such thing, a grant of qualified immunity would be plainly inappropriate at this stage.
Though the parties frame this appeal as presenting questions of qualified immunity, see, e.g., Opening Br. 2, Defendants appear to additionally argue that Plaintiffs fail to plausibly allege either a facial or an as-applied due process challenge. A facial challenge, Defendants maintain, “can only succeed by establishing that no set of circumstances exist under which Step-Down Program would be valid,” whereas Plaintiffs pleaded only that Step Down “does not provide many prisoners with any real opportunity from segregation.” Id. at 52-53 (cleaned up) (citation omitted). Nor, according to Defendants, have Plaintiffs sufficiently alleged Defendants’ personal involvement in Step Down “as applied to them” because Plaintiffs have not identified “any specific segregation review of their own that they allege failed to comport with procedural due process.” Id. at 53-54. Defendants do not reprise these arguments on reply.
The Complaint makes clear Plaintiffs request both facial (“abolish the Step-Down program“) and as-applied (“award[ ] Plaintiffs compensatory damages“) relief. See J.A. 123 (emphasis added). But the propriety of either “goes to the breadth of the remedy,” Citizens United v. Fed. Election Comm‘n, 558 U.S. 310, 331 (2010), and depends on whether a broad constitutional judgment is required to “adjudicat[e] rights in particular cases between the litigants brought before the Court,” Broadrick v. Oklahoma, 413 U.S. 601, 611 (1973). Down the line, if Plaintiffs succeed on their due process claim, the district court will need to decide whether the evidence presented justifies broad relief implicating the entire Step Down or whether Plaintiffs’ harms can be remedied through damages and a tailored injunction. But in no case will the remedy depend on what Defendants infer from the Complaint‘s brief observation that Step Down “does not provide many prisoners with any real opportunity from segregation.” Opening Br. at 52-53 (cleaned up) (citation omitted).
Defendants’ arguments on the as-applied challenge fall similarly flat. To the extent Defendants protest Plaintiffs have not adequately alleged their individual involvement, that is simply not so. The Complaint painstakingly sets forth each Defendant‘s role in either creating or administering Step Down. See J.A. 44-52. If, on the other hand, Defendants object that Plaintiffs have not alleged sufficient facts showcasing why their own reviews fail constitutional requirements, the contention is impolitic at best. Plaintiffs allege, over dozens of pages, that Defendants conduct reviews in secret, that Plaintiffs have no access to their informal rating charts, and that formal hearings last only moments at Plaintiffs’ cell doors and result in conclusory assessments like “Remain Segregation.” See supra pp. 30-31. Those allegations compellingly demonstrate why Plaintiffs lack more particularized evidence at this point in the litigation. And they easily meet the “short and plain statement” requirement.
VI.
For the foregoing reasons, the district court‘s judgement is
AFFIRMED.