Porter v. Clarke

• Decision Date: 24 March 2017
• Docket Number: No. 16-7044,16-7044
• Citation: 852 F.3d 358
• Parties: 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.
• Court: U.S. Court of Appeals — Fourth Circuit

852 F.3d 358

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.

No. 16-7044

United States Court of Appeals, Fourth Circuit.

Argued: January 25, 2017

Decided: March 24, 2017

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.

Before NIEMEYER, TRAXLER, and WYNN, Circuit Judges.

Reversed and remanded by published opinion. Judge Wynn wrote the opinion, in which Judge Niemeyer and Judge Traxler joined.

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, 120 S.Ct. 693, 145 L.Ed.2d 610 (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.

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 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 non-contact 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 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.

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...