Smith v. Collins

• Decision Date: 20 September 2018
• Docket Number: Case No. 7:17CV00215
• Citation: Smith v. Collins, Case No. 7:17CV00215 (W.D. Va. Sep 20, 2018)
• Parties: ELBERT SMITH, Plaintiff, v. DENNIS COLLINS, ET AL., Defendants.
• Court: U.S. District Court — Western District of Virginia

ELBERT SMITH, Plaintiff, v. DENNIS COLLINS, ET AL., Defendants.

Case No. 7:17CV00215

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA ROANOKE DIVISION

September 20, 2018

OPINION AND ORDER

By: James P. Jones United States District Judge

Elbert Smith, Pro Se Plaintiff; Laura H. Cahill, Assistant Attorney General, Office of the Attorney General of Virginia, Richmond, Virginia, for Defendants.

The plaintiff, Elbert Smith, a Virginia inmate proceeding pro se, filed this civil rights action under 42 U.S.C. § 1983 and was granted permission to proceed without prepayment of filing fees. 28 U.S.C. § 1915(b). In his Complaint as amended, Smith alleges that prison officials have housed him in segregated confinement under highly restrictive conditions since 2011 without due process, in violation of his rights under the Fourteenth Amendment. After review of the record, I conclude that the defendants' Motion for Summary Judgment must be granted.

I. BACKGROUND.

Smith was received into Virginia Department of Corrections ("VDOC") custody on November 14, 1996, and is serving a 44-year sentence for various convictions, including two counts of malicious wounding, second-degree murder, use of a firearm in the commission of a felony, and distribution of cocaine.¹ In November 2010, Smith was assigned to the Grooming Policy Violators Housing Unit ("VHU") at Keen Mountain Correctional Center.² In February 2011, Keen Mountain administrators transferred Smith on an emergency basis to Red Onion State Prison ("Red Onion"), a higher security facility, after he was accused of assaulting a correctional officer. State court criminal charges based on his conduct were ultimately dismissed or reduced. Nevertheless, based on the assaultive behavior, Smith was held in segregated confinement and was ultimately assigned to the VDOC's security Level S.

Level S is a security classification reserved for inmates who must be managed in a segregation setting because allowing them to interact freely with other inmates or with staff would pose an unjustifiable security risk. Certain kinds of past acts are segregation qualifiers. For example, committing an aggravated assault on staff, committing an aggravated assault on another inmate with aweapon or resulting in a serious injury without a weapon, participating in violent gang-related activity, or committing other acts posing a "threat level too great for the safety and security of a lower level institution are segregation qualifiers." Mem. Supp. Mot. Summ. J. Ex. 2, VDOC Operating Procedure ("OP") 830.2(IV)(G)(2), ECF No. 27-2.

A Level S inmate may participate in the Segregation Reduction Step-Down Program ("Step-Down Program"), which took effect in February 2013. It is designed to help inmates progress in stages toward a return to the general prison population setting in a manner that maintains public, staff, and inmate safety. Id. at Ex. 1, Mathena Aff., Enclosure A, OP 830.A, ECF No. 27-1. The program is an incentive-based, goal-oriented housing system currently in place at Red Onion. Until October 2017, a modified version of the program operated at Wallens Ridge State Prison ("Wallens Ridge"). In this program, when inmates consistently exhibit positive behaviors, such as anger management and respect, and succeed in completing the established goals in each stage of the procedure, they are rewarded by moving to the next step and earning its additional privileges.

A newly classified Level S inmate is assessed and assigned to one of two pathways, each with specified privilege levels: intensive management ("IM") or special management ("SM"). An inmate is assigned to SM status if evaluators find that he has a history of "repeated disruptive behavior at lower level facilities, . . .fighting with staff or offenders, and/or violent resistance" that harmed staff or other inmates, but "without the intent to invoke serious harm, . . . kill, or [cause] serious damage to the facility." Id. at OP 830.A(III). Smith's 2011 aggravated assault against a staff member was a factor in his assignment to Level S and the SM Step-Down Program pathway.

Inmates on the SM pathway are further sub-classified under OP 830.A, starting with the SM-0 step, the most restrictive status, and working toward the general prison population as the least restrictive, as follows: SM-0, SM-1, SM-2, SM-SL6, Step-Down—Level VI General Population, Structured Living—Phase 1 and Phase 2, Security Level V General Population. The aim of these privilege stages is to motivate inmates to participate in the Step-Down Program, which is designed to help them make cognitive changes toward pro-social behavior. An inmate who chooses to participate in the program faces three areas of commitment: disciplinary goals, responsible behavior goals, and programming participation goals, including completion of designated portions of the seven workbooks in the Challenge Series. The program is designed to develop a routine pattern of responsible and mature conduct. Inmates strive to earn good weekly behavior ratings in cell maintenance, personal hygiene, standing for count, respect, and programming participation. When evaluators determine that an inmate has met the goals designated for a step, they may advance him to the next step and theadditional privileges assigned to it. Inmates who do not meet goals in these areas can be moved back a step or be required to start over with a Challenge Series workbook.

All Level S inmates are housed in single cells and, until they reach the SM-SL6 stage, are restrained in handcuffs and shackles and escorted by two officers whenever they leave their cells. They receive the same types of meals that inmates in general population receive (but in their cells), receive not less than three showers per week, and have out-of-cell recreation for one hour, five days per week. These inmates are permitted a limited number of phone calls per month, one non-contact visit each week, and limited commissary purchases. They can possess and exchange library books each week, receive and send mail, and possess legal and religious materials. An inmate who moves from SM-0 to SM-1 or SM-2 is permitted additional privileges.

Smith complains that living conditions under the Step-Down Program are harsh. Mot. File Am. Compl. 3-4, ECF No. 10. He must undergo a visual strip search whenever he leaves his cell. The cells have no mirrors, and the lights are never turned off, only dimmed from 10:00 p.m. to 5:00 a.m. Cell doors are solid metal, with strips along the sides and bottom to minimize communication with inmates in nearby cells. Use of the device that inmates use to send and receive emails is limited. Smith says that Step-Down Program cells are "synonymous withextreme isolation, in contrast to any other Virginia prison." Id. at 4. He states that he has been "deprived of almost any environmental or sensory stimuli" and "hasn't touched or smelt [sic] grass nor taken more than five steps without restraints in four (4) years, and [has been] restricted to [one] hour of fresh air" during limited recreation periods. Id.

Members of the Unit Management Team, a multi-disciplinary group of staff who work in the housing units, track and rate each inmate's progress in the Step-Down Program toward the goals of his assigned step. Team members are encouraged to communicate with inmates about these ratings — to acknowledge positive performance and motivate improvement where needed. OP 830.A(IV)(D), ECF No. 27-1. Under the procedures in OP 830.A, staff evaluators regularly reassess each inmate's progress toward consistently meeting these goals — during informal weekly reviews and more formal assessments every 90 days and annually. Per policy, a formal review includes advance notice to the inmate, an opportunity for him to make a statement, and a written report of the evaluator's classification recommendation and reasons for it.

When an inmate completes the Challenge Series curriculum and evaluators deem that he has achieved its behavioral goals in SM-2, he is stepped down in security level from Level S to SM-SL6 Phase 1. Id. at OP 830.A(IV)(F). The phases of SM-SL6 are geared to safely reintroduce an inmate into a socialenvironment where he can interact with other inmates in gradually increased amounts of time and test his readiness for possible transfer to Level V and, eventually, to other non-segregation settings. An SM-SL6, Phase 1 inmate will start with unrestrained movement from his cell to the shower or recreation, then to participation in the Thinking for a Change curriculum with a few other inmates, and then, in Phase 2, to having a cell mate, outside recreation time, and meals in the dining hall with other inmates.

Smith entered an earlier version of the Step-Down Program at Red Onion in 2012. Administrators there allegedly led Smith to believe that if he completed the steps in the program, he could be returned to the VHU. In April of 2013, after Smith had been in segregated confinement for two years, an Institutional Classification Authority ("ICA") formally recommended Level S status for him. Smith completed the Challenge Series in July 2013 and was transferred to Wallens Ridge, hoping for VHU placement there. Instead, Smith spent the next four years in the Step-Down Program. Repeatedly, after his ninety-day status review before the ICA, Counselor Anthony Gilbert's reports recommended a longer period of stable adjustment for Smith. It is undisputed, however, that Gilbert also spoke personally with Smith many times about the Step-Down Program process. Gilbert Answer Interrog., ECF No. 36.

Smith has presented evidence that during his years in the Step-Down Program, he has earned an increase in his rating for earning good conduct time and a decrease in his security level points. Nevertheless, he was sometimes held at the same step or was moved back a step for "being out of compliance with grooming policy," Mot. Opp'n Mot. Summ. J. Smith Aff. Ex. G, ECF No....