‘Qualified Immunity Cannot Shield Them’: Fourth Circuit Advances Suit by Virginia Prisoners for Overlong Solitary Confinement
by Benjamin Tschirhart
On June 14, 2022, the U.S. Court of Appeals for the Fourth Circuit affirmed denial of qualified immunity (QI) to officials with Virginia’s Department of Corrections (DOC) in a suit by a group of state prisoners alleging they were held in solitary confinement too long.
Red Onion State Prison and Wallens Ridge State Prison are “supermax” lockups. Together they hold over 1,600 beds and employ a similar number of people. In rural Wise County, that means one of every ten workers clocks into these prisons. So leaving beds empty carries an economic — and political — price.
After years in solitary confinement Frederick Hammer and 11 others held at the prisons sued DOC for keeping them in isolation longer than necessary, and not for disciplinary reasons but for economic ones. In the putative class action they filed in federal court for the Western District of Virginia in 2020, they accused DOC officials of twin constitutional violations.
First, they argued that their conditions in solitary confinement — deprived of social contact and recreation, kept under incessant lighting — violate the Eighth Amendment guarantee of freedom from cruel and unusual punishment. Secondly, as the Court recalled, they said DOC’s “Step-Down” policy fails to provide a “meaningful pathway out of solitary,” in violation of their Fourteenth Amendment due-process rights. How so? Because it gives guards “unfettered discretion to retain, regress, or even restart prisoners in Step Down for reasons unrelated to any security concerns.”
Defendants moved for summary judgment, asserting QI. When the district court denied the motion, they filed an interlocutory appeal with the Fourth Circuit. There the Court began by noting the tension between the drivers of solitary confinement — including “the rise in prison gangs and violence” — and the deleterious effects of depriving prisoners of “nearly all environmental and sensory stimuli and of nearly all human contact for 22–24 hours a day.”
The district court had not yet determined a constitutional violation occurred, only that Defendants were not entitled to QI if one had. In their appeal to that decision, they argued they were unaware that the obvious harm done to prisoners by extended time and isolation was “clearly established” in law. The Court, however, rejected this attempt to reframe the question.
Rather, it said the issue is whether DOC officials were “plausibly placed … on notice of the full volley of harms their confinement practices created.” As the Court pointed out, QI “does not shield those who knowingly violate the law,” quoting Mally v. Briggs, 475 U.S. 335 (1986). Prison officials can be held liable if they know their policies carry real risk of serious harm yet do nothing to abate it.
Defendants claimed “they did not know … that the solitary-confinement conditions they promulgated posed ‘a substantial risk of serious harm.’” But this is a matter to be determined at trial, the Court said, not at the pleading stage. While Defendants “may well end up on the winning side of that argument after the evidence comes in,” the Court allowed, what matters at this point is that “the pre-existing law [is] not in controversy.” If Defendants are later proven to isolate human beings for years on end for merely pecuniary reasons, the Court declared that QI “cannot shield them.”
Hammer and the other plaintiffs — William Thorpe, Dmitry Khavkin, Gerald McNabb, Gary Wall, Vernon Brooks, Brian Cavitt, Derek Cornelison, Christopher Cottrell, Peter Mukuria, Steven Riddick and Kevin Snodgrass — were represented by attorneys Vishal M. Agraharkar of the ACLU Foundation of Virginia and Andrei A. Popovici of White & Case LLP in Washington, DC. See: Thorpe v. Clarke, 37 F.4th 926 (4th Cir. 2022).
The case has now returned to the district court, where Plaintiffs moved to certify a class of similarly situated prisoners on September 28, 2022. PLN will report developments as they are available. See: Thorpe v. Va. Dep’t of Corr., USDC (W.D. Va.), Case No. 2:20-cv-00007.
Additional source: Roanoke Times
As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.
Already a subscriber? Login