Latson v. Clarke et al

Filing 101

ORDER granting in part and denying in part 93 Motion to Dismiss for Failure to State a Claim; Commonwealth of Virginia and Marion Correctional Treatment Center are dismissed as defendants in this case. Signed by Judge James P. Jones on 4/20/17. (flc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ABINGDON DIVISION
REGINALD CORNELIUS LATSON,

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Plaintiff,
v.
HAROLD W. CLARKE, ET AL.,
Defendants.

Case No. 1:16CV00039
OPINION AND ORDER
By: James P. Jones
United States District Judge

Caitlin Marie Kasmar and Katherine Katz, BuckleySandler LLP,
Washington, D.C., and Deborah Golden and Elliot M. Mincberg, Washington
Lawyers’ Committee for Civil Rights and Urban Affairs, Washington, D.C., for
Plaintiff; Nancy Hull Davidson, Assistant Attorney General, Office of the Attorney
General,Richmond, Virginia, for Defendants.
In this civil rights case, the plaintiff, a Virginia inmate, asserts claims against
prison officials and state entities based on the First, Eighth, and Fourteenth
Amendments to the United States Constitution, as well as the Americans with
Disabilities Act and the Rehabilitation Act. The defendants have moved to dismiss
the Amended Complaint on numerous grounds. For the reasons that follow, I will
grant in part and deny in part the Motion to Dismiss.
I.
The Amended Complaint alleges the following facts, which I must accept as
true for the purpose of deciding the pending motion.

The plaintiff, Reginald Cornelius Latson, is a twenty-four year old man who
has been diagnosed with autism spectrum disorder (“ASD”) and intellectual
disability (“ID”).

These conditions limit his major life activities of learning,

concentrating, thinking, communicating, interacting with others, caring for himself,
and working.

He has a record of such impairments and is regarded by the

defendants as having such impairments.
Marion Correctional Treatment Center (“MCTC”) is a medium security state
prison located in Marion, Virginia. Mr. Latson was confined at MCTC from June
5, 2004 until February 2, 2015. The Commonwealth of Virginia, through the
Virginia Department of Corrections (“VDOC”), operates MCTC.

MCTC and

VDOC receive federal financial assistance.
Defendant Dara Robichaux served as Assistant Warden of MCTC while
Latson was incarcerated.

Robichaux supervised MCTC employees and had

authority to establish and implement policies and procedures. Defendant Larry
Jarvis was the Warden of MCTC during part of the time that Latson was
incarcerated. He also supervised MCTC employees and had authority to establish
and implement policies and procedures.
Director of VDOC.

Defendant Harold W. Clarke is the

Clarke oversees VDOC employees and has authority to

establish, alter, and implement VDOC policies and procedures. Latson has also

2

sued certain “Doe Defendants,” who are employees of the defendants whose
identities are presently unknown to Latson.
Latson was diagnosed as disabled and began receiving special education
services in kindergarten. He repeated kindergarten due to his impairments. At the
age of seven, Latson was assigned a full-scale IQ score of sixty-one and was noted
as having delays in receptive grammar and reduced eye contact. He was diagnosed
with ASD at age fourteen. He exhibited symptoms such as rocking, obsessive
focusing, and atypical behaviors and was placed in special education throughout
his adolescence. His ASD caused him to have difficulty with communication,
social interaction, and maintaining attention.
It is not uncommon for people with ASD to have unusual sensitivities and
difficulty regulating their responses. People with ASD have trouble understanding
the actions and motivations of others, lack the ability to read social cues, struggle
with complex language, do not easily understand rules of social behavior, and
often respond to unexpected situations with anxiety and agitation.
On April 21, 2014, Latson was transferred from the Northwestern Regional
Adult Detention Center to the Rappahannock Regional Jail (“Rappahannock”).1

1

The Amended Complaint sets forth detailed allegations regarding incidents that
happened before Latson was confined at Rappahannock or MCTC. I do not recount most
of those allegations here because they are not relevant to the claims asserted against the
defendants in this case or the issues raised in the Motion to Dismiss.
3

When he arrived at Rappahannock, he was placed in solitary confinement. He was
not permitted to make telephone calls; a window between his cell and the hallway
was covered so he could not see into the hallway; and he was given no material for
entertainment except a dictionary. Rappahannock officials did not initially attempt
to address Latson’s mental health needs.
Three days after his arrival at Rappahannock, Latson, who was
psychologically distressed, was evaluated by a psychiatrist.

The psychiatrist

concluded that Latson was suicidal, prescribed antipsychotic medication, and
ordered Latson moved to a crisis cell for suicide watch. On April 24, 2014, a
corrections officer who was placing Latson in the crisis cell ordered Latson to put
his hands on the wall and then physically pushed him against the wall. Latson, in
the midst of a diagnosed mental health crisis, reacted to this physical force with a
fight-or-flight response that is symptomatic of ASD and lashed out, striking the
officer.
Three correctional officers then surrounded Latson, and First Sergeant
William Diehl tasered Latson for the full five-second Taser cycle, causing
neuromuscular incapacitation. Latson collapsed to the floor. At the direction of
First Sergeant Diehl, Latson was placed in handcuffs and leg irons and was seen by
a nurse, who removed the Taser probes. After the incident, Latson was placed in a
Pro-Straint chair in the crisis cell, and at the direction of First Sergeant Diehl, four
4

correctional officers strapped Latson to the chair. A Pro-Straint chair has a straight
back and straps that are used to fully restrain an inmate’s legs, arms, waist, and
chest.
Officers checked on Latson every fifteen minutes while he was in the ProStraint chair, and for all checks performed within the first hour and a half, he was
noted to be either quiet or responsive. For the next four and a half hours, he was
noted to be quiet. The officers left him in the Pro-Straint chair, unable to move,
eat, or use the restroom, for more than nine hours. When he was released from the
Pro-Straint chair, he received a snack bag and milk but was given no dinner.
Following this incident, Latson was placed in a crisis cell on modified
suicide watch for one week. The cell contained a safety mattress but had no toilet,
toiletries, or other furnishings. He was then removed from the crisis cell and
placed in administrative segregation.

While Latson was in segregation,

Rappahannock mental health staff only conducted suicide watch checks to ensure
he was not in immediate physical danger. Rappahannock staff prevented Latson
from receiving mental health testing or treatment. Latson remained in segregation
for more than one month, until he was transferred to MCTC on June 5, 2014.
Within a day of his arrival at Rappahannock, Latson was placed into the
legal custody of the VDOC, despite continuing to be housed at a regional jail.
Clarke had discretion to determine the priority for receiving prisoners in VDOC
5

custody from local facilities into state-operated facilities and to order transfers of
prisoners.

Within a week of Latson’s arrival at Rappahannock, VDOC

representatives were
Rappahannock.

notified of

Latson’s

conditions and treatment at

Clarke, however, did not immediately transfer Latson to a

different facility.
On April 30, 2014, while Latson was restrained in the Pro-Straint chair,
clinical psychologist Susan Williams emailed mental health clinician Richard
Feldman, copying Keith Dawkins and Eric Madsen, all of whom were VDOC
employees, requesting that Feldman meet with Latson to consider whether he
should be transferred to a VDOC facility sooner than planned. Williams wrote that
VDOC needed a report of Latson’s mental status and how he was being managed
at Rappahannock.
On May 8, 2014, Feldman met with Latson and reported that Latson was
manageable with close monitoring and regular contact with treatment staff.
Feldman conveyed his belief that Latson was being singled out by correctional
officers for ridicule and mistreatment because the original offense that led to his
incarceration was an assault of a police officer. Feldman observed that Latson was
not delusional and did not show evidence of perceptual disturbances. Feldman
noted that Latson had previously done very well at Northwestern Regional Adult
Detention Center, where he had been in a sheltered housing situation.
6

On May 7, 2014, Latson’s attorney communicated with VDOC about the
possibility of transferring Latson to AdvoServ, a non-VDOC facility, before he had
finished serving his active sentence.

On May 20, 2014, counsel working on

Latson’s behalf sent a letter to the Governor of Virginia regarding Latson’s
conditions and treatment at Rappahannock and the effects on Latson’s mental
health. Latson’s advocates continued to contact VDOC and other Commonwealth
agencies throughout Latson’s time at Rappahannock, alerting them to Latson’s
conditions and treatment and his diagnosed disabilities, and requesting that he be
transferred to another facility. The Governor directed VDOC to transfer Latson to
a VDOC facility as soon as possible, and Latson was transferred to MCTC on June
4, 2015.
Research has shown that the impacts of solitary confinement can be similar
to those of torture and can include a variety of negative physiological and
psychological reactions. These effects are amplified in individuals with mental
illness and can exacerbate underlying conditions, especially in people with
intellectual disabilities. Latson alleges that the defendants knew or should have
known that placing him in segregation could be devastating to his mental health.
In 2003, following a series of inmate suicides at the facility, a suicide consultant
issued a report to Rappahannock recommending that isolation should be avoided
and suicidal inmates should instead be housed close to staff in the general
7

population, mental health unit, or medical infirmary. The report also stated that
restraints such as the Pro-Straint chair should be used only as a last resort.
In 2012, United States Immigration and Customs Enforcement (“ICE”)
inspected Rappahannock and recommended that Rappahannock adopt policies and
procedures requiring removal of ICE detainees from their cells to use toilet
facilities, when necessary, to protect the detainees’ privacy and dignity. VDOC,
the Commonwealth, and Clarke knew or should have known about the ICE report.
While he was in segregation at Rappahannock, Latson was provided no
sensory stimulation. Specifically, he had no window, radio, reading materials,
television, or means of tracking time. He could see only the walls and door of his
cell. He was in segregation for more than a month and a half, during which time
he was only removed from his cell when the cell was being cleaned.
Latson was criminally prosecuted for the incident that led to the use of the
Pro-Straint chair. Latson pleaded guilty to the charge of assault on a police officer
and was sentenced to an additional six months of imprisonment. A prominent
corrections expert reviewed the handling of the offense and opined that, in
accordance with the standard practices of other jails nationwide, the incident
should have been treated as a mental health crisis and not as a criminal matter. The
expert commented that criminally prosecuting such violations by mentally ill
inmates can lead to a cycle of rule violations, punishment, segregation, and
8

exacerbation of mental illness, which in turn leads to more violations and
increasingly severe punishment.
When he was moved to MCTC, a facility designed to house mentally ill
inmates, Latson encountered conditions similar to those he had faced at
Rappahannock. He was placed into segregation immediately upon his arrival at
MCTC and remained there for nearly six months, with the exception of fourteen
days in late September and early October when he was housed in the general
population. He again had no access to reading materials, a radio, a television, a
clock, or other stimulus while he was in his segregation cell. He could only access
these items on days when he was allowed out of his cell for limited periods of time.
For most of his incarceration at MCTC, Latson could only stare at the walls of his
cell.
An MCTC policy requires a formal hearing when an offender is considered
for removal from the general population, an increase in security level, or reduction
in good-time earning level outside the annual review process.

Nevertheless,

Latson was not given a hearing before being placed into segregation. He received
a hearing three weeks later.
On June 26, 2014, following his hearing, Latson was given a Segregation
Release Plan (“SRP”) that provided for limited temporary release three days per
week for at least one hour.

During the preceding three weeks, Latson was
9

permitted no temporary release. Latson was placed in disciplinary segregation at
least three times for actions taken as a result of his ASD. While he was in
disciplinary segregation, he was provided no time outside of his cell. On one
occasion, he was kept in his cell for twenty consecutive days with no stimulus
other than Bible pamphlets. When he was not in disciplinary segregation, Latson’s
out-of-cell time ranged from half an hour three days per week to one hour five days
per week. On the remaining days, he was not permitted outside of his cell at all.
Throughout Latson’s time at MCTC, Risk of Institutional Aggression forms
noted that Latson posed a high risk of aggression towards others. The reasons
stated for this assessment were that he had been convicted of assaulting a law
enforcement officer, had mild ID and ASD, and had a history of low frustration
tolerance and aggression. The defendants did not create a protocol to address
Latson’s disabilities, and they responded to his behavioral incidents with
punishment rather than treatment.
On June 30, 2014, Latson’s SRP was suspended and he was placed in
disciplinary segregation for one week because he had thrown objects at his cell
door and liquid under and around his cell door after becoming upset. He alleges
this was an episodic outburst caused by his ASD. Latson was not given a hearing
before being placed in disciplinary segregation. Advocates for Latson voiced
concerns to an MCTC clinical social worker about the consequences of placing
10

Latson in segregation and asked that he have access to some sensory input, but that
request was not fulfilled.
On July 11, 2014, Latson threw his coffee cup at the wall and pushed his
breakfast tray through the slot in his cell door, striking an officer in the abdomen.
He was forcibly extracted from his cell and suffered a laceration on his arm that
required stitches. He was punished with twenty days of disciplinary segregation,
but he was not placed back on an SRP until twenty-eight days after the incident.
During his twenty-eight days in segregation, he was not allowed any time outside
of his cell. For one month following the incident, he was deprived of a toothbrush.
For nearly a month and a half, blood from the laceration on his arm remained in his
cell. For more than two months, he was not given toilet paper.
By the time he was transferred to MCTC, Latson had already lost forty-two
pounds since his arrest. Within ten days of his arrival at MCTC, he had lost an
additional five pounds. Beginning a few days after his transfer, MCTC gave him
Ensure twice a day in addition to his meals. However, following the July 11
incident, he no longer received Ensure despite pleas by those advocating on his
behalf. In addition, Latson was not permitted to purchase anything from the
commissary other than writing materials and hygiene supplies. Though no security
reason was stated for the restriction, he was not permitted to order food or
discretionary items that other inmates were allowed to order.
11

On June 18, 2014, an MCTC recreation therapist completed a Recreation
Therapy Assessment of Latson. He noted that Latson had a slow learning ability
and would need activities to help him cope with his environment.

No such

activities were implemented. While at MCTC, Latson received no mental health
treatment aside from psychiatric medication. His advocates visited him on October
3, 2014, and were not permitted to complete a grievance form.
On October 5, 2014, Latson had an outburst in the cafeteria at breakfast. His
SRP was suspended and he was placed in disciplinary segregation for twenty days.
During that time, he was not allowed outside of his cell and had no access to
music, books, magazines, radio, television, or canteen items. His only source of
stimulus was a few Bible pamphlets. Latson alleges that because of his ASD, he is
not deterred from future misconduct by discipline in the way that non-disabled
inmates are deterred.
Latson avers that throughout his time at MCTC, Robichaux and Jarvis
personally reviewed and approved decisions regarding his housing situation.
Beginning the day after his arrival at MCTC, people advocating on Latson’s behalf
communicated with Robichaux and Jarvis about his diagnoses and expressed their
concerns about his treatment and conditions of confinement, and the effects that
isolation would have on his mental state. Latson’s advocates also communicated
with other staff members who were supervised by Robichaux and Jarvis. On June
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5, 2014, Latons’s attorney spoke with an MCTC employee to express his concern
about Latson’s segregation placement and to request that reading materials be
made available. The employee responded that she would review the applicable
policies and speak to security about his concerns.
VDOC employees working under Clarke’s supervision were also informed
of Latson’s treatment and conditions of confinement throughout his placement at
Rappahannock and MCTC. On July 9, 2014, Clarke sent Latson’s attorney an
electronic calendar invitation to speak about Latson on July 14, 2014. Clarke was
copied on letters regarding Latson’s situation at MCTC that Latson’s counsel sent
to the Governor on September 2, 2014, and November 21, 2014.
In late 2014, media sources including the Washington Post and the New York
Times began publishing stories about Latson. The United States Department of
Justice (“DOJ”) interviewed Latson as part of an investigation into the
Commonwealth’s

compliance

with

a

settlement

agreement

involving

accommodations for inmates with intellectual and developmental disabilities.
Virginia’s Protection and Advocacy Organization, a federally mandated program,
sought information about his confinement.

In December, 2014, Latson was

transferred from administrative segregation to the general population at MCTC.
Latson’s counsel submitted a formal pardon request to the Governor on
January 12, 2015. The Governor granted a conditional pardon on January 20,
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2015, approving Latson’s transfer to AdvoServ, an out-of-state facility designed to
serve individuals with intellectual and developmental disabilities. The Virginia
Department of Medical Assistance Services had contemplated this placement as
early as August, 2013, and had procured funding for it in October, 2013.
On January 20, 2015, after Latson was conditionally pardoned, he was
returned to segregation.

He was stripped of his possessions, had all of his

privileges revoked, and was again denied access to books, television, telephone,
the commissary, and his music player. Three days later, MCTC staff informed
Latson’s attorney that Latson had been placed in segregation for his own
protection, but offered no explanation for the withdrawal of privileges and lack of
stimulation.

Latson’s counsel then emailed several representatives of MCTC,

VDOC, and the Virginia Department of Behavioral Health & Developmental
Services (“DBHDS”), including Robichaux, alerting them to his segregation and
removal of stimulus and privileges following the pardon, and expressing concern
about the effect these conditions would have on Latson. His counsel had learned
that Latson had no water in his segregation cell and was only given drinks at
meals, and she had been told that after the pardon, staff had been handling him
roughly, mocking and disparaging him, and threatening him about the pardon.
Latson’s counsel included this information in her emails to representatives of
MCTC, VDOC, and DBHDS.
14

When Latson was removed from the general population and placed into
segregation following his pardon, he was not placed in pre-hearing detention or
given a formal hearing. Latson alleges that guards and other MCTC staff placed
him in segregation as an act of retaliation against him for exercising his free speech
rights to secure a pardon. As a result, his ability to communicate with his counsel,
family, and others outside the facility was restricted; his mental condition was
destabilized; and he feared further retaliation for future attempts to exercise his
free speech rights.
Latson was transferred to AdvoServ on February 2, 2015. Though his
mental health needs are being addressed there, Latson alleges that the defendants’
actions caused him significant and potentially irreversible damage. He developed
post-traumatic stress disorder (“PTSD”) and other mood, anxiety, and panic
disorders. He has had difficulty adapting to his new environment. Authority
figures provoke severe anxiety and fear.

Latson avers that he once showed

promise of leading a relatively independent life in the least restrictive placement
and maintaining employment, but it is now unlikely that he will achieve that level
of independence in the foreseeable future. He relies on others to manage his
heightened fear and reactivity in challenging interpersonal situations, and he is
hypervigilant to signs of danger. He alleges that he will require long-term mental
health treatment to address his anxiety, depression, social isolation, and sense of
15

hopelessness. Latson contends that his trauma was caused by the conditions of his
confinement at Rappahannock and MCTC, and in particular, his lengthy
placements in segregation and lack of stimulus.
Based on these allegations, Latson asserts seven claims. Count One is an
Eighth Amendment claim regarding Latson’s conditions of confinement, brought
pursuant to 42 U.S.C. § 1983 against Robichaux, Jarvis, and Clarke in their
individual capacities. Count Two is an Eighth Amendment claim brought pursuant
to § 1983 against Robichaux, Jarvis, and Clarke in their individual capacities,
regarding their alleged failure to provide medical care to Latson. Count Three is a
Fourteenth Amendment due process claim brought pursuant to § 1983 against
Robichaux, Jarvis, and Clarke in their individual capacities. Count Four is a
Fourteenth Amendment equal protection claim brought pursuant to § 1983 against
Robichaux, Jarvis, and Clarke in their individual capacities. Count Five is a First
Amendment free speech retaliation claim brought pursuant to § 1983 against
Robichaux and Clarke in their individual capacities. Count Six asserts a claim of
violation of the Americans with Disabilities Act (“ADA”) against Robichaux,
Jarvis, and Clarke, in their official capacities, and MCTC, the Commonwealth of
Virginia, and VDOC. Count Seven asserts a claim under the Rehabilitation Act
(“RA”) against Robichaux, Jarvis, and Clarke, in their official capacities, and
MCTC, the Commonwealth of Virginia, and VDOC.
16

II.
Latson initially filed suit in the United States District Court for the Eastern
District of Virginia on April 21, 2016, asserting claims against the defendants
named here as well as parties associated with Rappahannock. Latson v. Clarke,
No. 1:16-cv-00447-GBL-MSN (E.D. Va.). Clarke, MCTC, Robichaux, Jarvis, the
Commonwealth, and VDOC moved to sever the claims against them from the
claims against the Rappahannock parties and to transfer the severed claims to the
Abingdon Division of the Western District of Virginia, in which MCTC is located.
The court granted the Motion to Sever and Transfer Venue, finding that the two
sets of claims were significantly different from one another and would require the
presentation of different evidence and witnesses. Mem. Op. & Order 10-11 (E.D.
Va. Oct. 14, 2016), ECF No. 79. The court also found that “trying the claims
together may cause the jury to hold the Commonwealth Defendants liable for
physical force the Complaint alleges occurred at the Rappahannock Jail only,”
prejudicing the defendants. Id. at 11.
After the severed claims were transferred to this court, Latson filed an
Amended Complaint. The defendants have moved to dismiss the Amended
Complaint for failure to state a claim upon which relief can be granted, asserting a

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number of grounds for dismissal. The Motion to Dismiss has been fully briefed
and is now ripe for decision.2
III.
“The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a
complaint.” Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999).
Rule 12(b)(6) does “not require heightened fact pleading of specifics, but only
enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007). A motion to dismiss “does not resolve
contests surrounding the facts, the merits of a claim, or the applicability of
defenses.” Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992).
In ruling on a motion to dismiss, the court must regard as true all of the
factual allegations contained in the complaint, Erickson v. Pardus, 551 U.S. 89, 94
(2007), and must view those facts in the light most favorable to the plaintiff.
Christopher v. Harbury, 536 U.S. 403, 406 (2002). “Where, as here, the motion to
dismiss involves a civil rights complaint, [I] must be especially solicitous of the
wrongs alleged and must not dismiss the complaint unless it appears to a certainty
that the plaintiff would not be entitled to relief under any legal theory which might

2

I will dispense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument would not
significantly aid the decisional process.
18

plausibly be suggested by the facts alleged.” Rios v. Veale, 648 F. App’x 369, 370
(4th Cir. 2016) (unpublished).3
A.

Events that Occurred at Rappahannock.

The defendants contend that they cannot be held responsible for actions
taken by representatives of Rappahannock because local jails are operated by
independent sheriffs and local jail authorities. The defendants had no authority
over Rappahannock. They argue that while Clarke had discretion to transfer
Latson from Rappahannock into a Commonwealth facility, he had no duty to do so.
They further contend that the facts alleged do not demonstrate that Clarke had
personal knowledge of Latson’s conditions of confinement at Rappahannock.
Latson counters that because he was in VDOC custody while at
Rappahannock, and Clarke had the power to remove him from that environment,
Clarke can be held liable for constitutional violations that occurred there, as well as
for violations of the ADA and RA. He further contends that by alleging that his
advocates notified Clarke of constitutional violations, he has plausibly claimed that
Clarke knew of the alleged violations, and any further examination of the
defendants’ knowledge should be left to a fact-finder.
The defendants are correct that Rappahannock, a regional jail, is operated by
a regional jail authority and not by the Commonwealth. Va. Code Ann. §§ 53.13

I have omitted internal quotation marks, alterations, and citations here and
throughout this opinion, unless otherwise noted.
19

116.2, 53.1-106. The Supreme Court of Virginia has held that employees of local
and regional jails are not employees of the Commonwealth, and therefore the
Commonwealth cannot be liable for their actions under a theory of respondeat
superior. Doud v. Commonwealth, 717 S.E.2d 124, 322 (Va. 2011). Latson argues
that his claims regarding Rappahannock are not premised on respondeat superior,
but instead seek to hold Clarke, the Commonwealth, and VDOC 4 directly liable
because Clarke had the power to transfer Latson to a different facility and did not
do so for some time.
Va. Code Ann. § 53.1-20(B) generally provides that persons convicted of
felonies shall be received into state facilities within sixty days of when a
sentencing order is sent to the Director of VDOC. Subsection (C) of the statute
grants the Director discretion to determine the order in which prisoners will be
received into state facilities, and subsection (D) provides that felons who have not
been placed in VDOC facilities will serve their sentences in local facilities like
Rappahannock. As the defendants note, courts have held that this statute is merely
a procedural device and does not create any constitutional right to transfer. Counts
v. Newhart, 951 F. Supp. 579, 584-85 (E.D. Va. 1996), aff’d, 116 F.3d 1473 (4th
Cir. 1997); see also Khaliq v. Angelone, 72 F. App’x 895, 900 (4th Cir. 2003)
4

Counts One, Two, and Four assert claims against Clarke for events that occurred
at Rappahannock.
Counts Six and Seven assert claims against VDOC, the
Commonwealth, and Clarke for events that occurred at Rappahannock.
20

(unpublished) (holding that inmates “had no federal right to be housed in any
particular state facility, or in a state corrections facility as opposed to a local jail
compensated by the state for the cost of incarcerating state inmates pending their
transfer to an available and appropriate space within a state facility”).
But these cases are not dispositive. As to Latson’s ADA and RA claims, at
least one court of appeals has held that a state cannot escape its obligations under
the ADA and RA by housing inmates at third-party county prisons. Armstrong v.
Schwarzenegger, 622 F.3d 1058, 1069 (9th Cir. 2010). “At issue are [the state]
defendants’ own obligations under the ADA,” and a state must “ensure ADAcompliant conditions for prisoners and parolees being held under its authority,
whether it houses such persons in its own facilities or chooses to house them” at
other facilities. Id. Here, VDOC has an obligation to ensure that its prisoners’
rights under the ADA and RA are not being violated by the local and regional jails
in which it chooses to house its prisoners. Although VDOC cannot control the
actions of personnel at local and regional jails, it has the power and duty to house
its prisoners where they will be free from discrimination and afforded required
accommodations.
With regard to Counts One, Two, and Four, if Clarke knew that Latson’s
constitutional rights were being violated at Rappahannock while Latson was a
VDOC-responsible inmate, then Clarke conceivably had a duty to halt any known
21

constitutional violations. While he could not control the actions of Rappahannock
personnel, he had the power to end the alleged violations by transferring Latson to
a VDOC facility, which he ultimately did. Notice of continuing harm and failure
to exercise one’s power to remedy that harm can establish personal involvement in
a deprivation of rights for purposes of a § 1983 claim. Wright v. Collins, 766 F.2d
841, 850 (4th Cir. 1985).
Of course, at this procedural stage, I cannot say what Clarke knew or when
he knew it. At the summary judgment stage, the undisputed record evidence may
show that he did not receive notice of the alleged events occurring at
Rappahannock.

But in ruling on the Motion to Dismiss, I must view the

allegations in the light most favorable to Latson. The Amended Complaint alleges
that VDOC representatives were notified of Latson’s conditions and treatment at
Rappahannock no more than a week into his approximately one and a half month
stay there.

A VDOC mental health clinician allegedly met with Latson at

Rappahannock and expressed his concerns and recommendations in a written
report.

The Amended Complaint further alleges that Latson’s attorneys and

advocates contacted VDOC officials on several occasions regarding his treatment
and conditions at Rappahannock.

The Amended Complaint also alleges that

VDOC, the Commonwealth, and Clarke knew or should have known about the ICE
report regarding treatment of inmates at Rappahannock.
22

I find that these

allegations are sufficient to state plausible claims that Clarke knew or should have
known about Latson’s treatment and conditions at Rappahannock. At this early
stage of the case, that is enough for the claims based on events at Rappahannock to
move forward.
B.

Statute of Limitations for ADA and RA claims.

The defendants next argue that the asserted ADA and RA claims are barred
by the applicable statutes of limitations. The plaintiff and the defendants disagree
as to what limitations period applies to these claims. The defendants contend that
the applicable period is the one-year statute of limitations of the Virginia Rights of
Persons with Disabilities Act, Va. Code Ann. § 51.5-46(B). Latson argues that the
federal four-year catch-all limitations period applies here. 28 U.S.C. § 1658(a). In
the alternative, he argues that Virginia’s two-year personal injury limitations
period applies. Va. Code Ann. § 8.01-243(A).
Given the similarities between the ADA and the RA, courts apply the same
limitations period to claims under both acts. Semenova v. Md. Transit Admin., 845
F.3d 564, 567 (4th Cir. 2017). Because Title II of the ADA does not contain a
statute of limitations, courts must either apply the federal four-year catch-all
limitations period or the state statute of limitations for the most analogous statelaw claim. A Soc’y Without a Name, for People Without a Home, Millennium
Future-Present v. Virginia, 655 F.3d 342, 347 (4th Cir. 2011). The four-year
23

federal catch-all period applies only to claims arising under statutes enacted after
December 1, 1990, and the ADA was enacted a few months before that, on July 26,
1990. Id. Therefore, as a general rule, “the one-year limitations period in the
Virginia [Rights of Persons with] Disabilities Act applies to ADA claims brought
in Virginia.”

Id. at 348.

The ADA was amended, however, in 2008.

ADA Amendments Act of 2008, Pub. L. No. 110–325, 122 Stat. 3553 (codified
at 42 U.S.C. § 12102).

If Latson’s claim was made possible by the ADA

Amendments Act rather than the pre-amendment ADA, then he can invoke the
four-year statute of limitations. See Jones v. R.R. Donnelley & Sons Co., 541 U.S.
369, 382 (2004); Mercado v. Puerto Rico, 814 F.3d 581, 589 (1st Cir. 2016).
Latson argues that his claim was made possible by the ADA Amendments
Act because his condition is episodic in nature, and ASD and ID were not
consistently recognized as disabilities under the original ADA.

The ADA

Amendments Act broadened the definition of “disability” under both the ADA and
the RA. 42 U.S.C. § 12102(4)(A) (“The definition of disability in this Act shall be
construed in favor of broad coverage of individuals under this Act, to the
maximum extent permitted by the terms of this Act.”). The amendments to the
ADA expressly included episodic impairments in the definition of disability and
provided that mitigating measures such as medication should not be considered in

24

determining whether an impairment substantially limits a major life activity and
thus qualifies as a disability. 42 U.S.C. § 12101(4)(D), (E).
Recent regulations clearly indicate that ASD now qualifies as a disability
under the amended version of the ADA. 29 C.F.R. § 1630.2(j)(3)(iii); 28 C.F.R. §
35.108(d)(2)(iii)(E). It is not clear, however, that ASD and ID, as they affect
Latson, would have been recognized as disabilities prior to the ADA Amendments
Act.
The defendants assert that ASD and ID were recognized as disabilities under
the ADA prior to 2008, but they have not pointed to any controlling case actually
holding that ASD and ID qualified as disabilities under the pre-amendment ADA.
In most of the cases cited by the defendants, the court either assumed these
conditions were disabilities without deciding the point, or the parties agreed that
ASD and ID were disabilities and did not present the issue to the court. See, e.g.,
Roe ex rel. Preschooler II v. Nevada, 332 F. Supp. 2d 1331, 1340 (D. Nev. 2004)
(stating that defendants did not contest that the plaintiff had a disability under the
ADA or was handicapped under the RA); Hahn ex rel. Barta v. Linn Cty., 130 F.
Supp. 2d 1036, 1045 (N.D. Iowa 2001) (noting that whether plaintiff was a
qualified individual with a disability was not in dispute). Additionally, it is not
apparent from the face of the Amended Complaint that ASD is an ever-present
rather than episodic disorder. The defendants’ arguments about the nature of ASD
25

and ID raise issues of fact that go beyond the four corners of the Amended
Complaint.
“Ordinarily, a defense based on the statute of limitations must be raised by
the defendant through an affirmative defense, see Fed. R. Civ. P. 8(c), and the
burden of establishing the affirmative defense rests on the defendant.” Goodman
v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007). Therefore, the question of
whether a claim is time-barred usually cannot be resolved on a motion to dismiss,
except “in the relatively rare circumstances where facts sufficient to rule on an
affirmative defense are alleged in the complaint.” Id.
Here, based solely on the allegations in the Amended Complaint, I cannot
say for certain that Latson’s ADA and RA claims would have been cognizable
prior to the 2008 ADA Amendments Act. Though it seems unlikely, the evidence
may show that Latson’s impairment is episodic, or that the mediation of his
condition through medication and treatment would have negated his claims under
the pre-amendment version of the ADA. The statute of limitations issue raised by
the defendants is not one that I can resolve at this procedural stage. I will thus
deny at this point the Motion to Dismiss to the extent it argues the plaintiff’s ADA
and RA claims are time-barred.

26

C.

MCTC as a Separate Party.

The defendants contend that MCTC must be dismissed because it is a
VDOC facility, not a separate legal entity. The defendants note that the Code of
Virginia does not grant individual correctional facilities the capacity to sue or be
sued. The claims asserted against MCTC are the same as those asserted against
VDOC, so the defendants assert that the plaintiff has nothing to gain from
separately naming MCTC as a defendant.
Latson does not cite any authority for the proposition that MCTC is a
separate legal entity from VDOC, and I am aware of none. The capacity to sue or
be sued is determined by state law. Fed. R. Civ. P. 17(b)(3). A state correctional
facility is defined as “any correctional center or correctional field unit used for the
incarceration of adult offenders established and operated by the Department of
Corrections, or operated under contract pursuant to § 53.1-262,” and includes
penitentiaries. Va. Code Ann. 53.1-1 (emphasis added). The Director of VDOC
has the duty and power to supervise and manage state correctional facilities. Va.
Code Ann. § 53.1-10(1).

The State Board of Corrections owns the real and

personal property of state correctional facilities and is the party authorized to sue to
protect that property. Va. Code Ann. § 53.1-18; see also § 53.1-31. It appears that
no Virginia statute grants state correctional facilities such as MCTC the capacity to

27

sue or be sued. I find that MCTC is not a proper party and will grant the Motion to
Dismiss as to MCTC.
D.

Proper Defendants for ADA and RA Claims.

The Amended Complaint asserts claims for violation of the ADA and RA
against Robichaux, Jarvis, and Clarke, all in their official capacities, as well as
MCTC, VDOC, and the Commonwealth of Virginia. The defendants urge the
court to dismiss these claims against Robichaux, Jarvis, and Clarke because a suit
against an individual in his or her official capacity is, for all intents and purposes, a
suit against the individual’s employer or principal. The defendants thus argue that
naming the individual defendants is redundant. They also move to dismiss the
Commonwealth for the same reason, as VDOC is an arm of the Commonwealth
and any monetary relief against either of these entities would be paid from the
same coffers.
Latson responds that discovery is needed to determine which of the
individual defendants are agents of which of the entity defendants. Latson further
asserts that the allegations show that VDOC and the Commonwealth played
different roles with respect to Latson, as the Commonwealth granted him a
conditional pardon and VDOC officials allegedly retaliated against him for seeking
that pardon.

28

“As long as the government entity receives notice and an opportunity to
respond, an official-capacity suit is, in all respects other than name, to be treated as
a suit against the entity.” Kentucky v. Graham, 473 U.S. 159, 166 (1985). Where
a plaintiff has named the entity as well, an official-capacity claim can be dismissed
as duplicative. Love-Lane v. Martin, 355 F.3d 766, 783 (4th Cir. 2004). Discovery
regarding agency can occur without the individual agents being named parties to
the suit.

And while the plaintiff’s theory of the case treats VDOC and the

Commonwealth differently, for purposes of defending against the plaintiff’s claims
and paying any potential damages, they are one and the same. I agree that the
ADA and RA claims against defendants other than VDOC are redundant, and I
will grant the Motion to Dismiss those claims against Robichaux, Jarvis, and
Clarke in their official capacities, and against the Commonwealth of Virginia.
E.

Viability of ADA Claim.

The defendants have moved to dismiss Count Six of the Amended
Complaint for failure to state a cognizable ADA claim.

According to the

defendants, Latson does not allege that he was excluded from services, programs,
or activities at MCTC, nor does he allege that he was treated differently from nondisabled inmates. Pointing to Mason v. Correctional Medical Services, Inc., 559
F.3d 880, 886 (8th Cir. 2009), the defendants assert that a prison is not required to
provide auxiliary aids and services to an inmate if doing so would be unduly
29

burdensome.

The defendants further argue that the allegations show that the

plaintiff was disciplined because of his misbehavior, not because of his disabilities.
Latson responds that the defendants’ motivation for placing him in
segregation is a factual issue that cannot be decided on a motion to dismiss. He
contends that his outbursts were inextricably linked to his disabilities, and at least
one Court of Appeals has recognized that aggression is a common symptom of
autism. Drew P. v. Clarke Cty. Sch. Dist., 877 F.2d 927, 928 n.1 (11th Cir. 1989).
Latson also cites Glaser v. Gap Inc., 994 F. Supp. 2d 569, 576 (S.D.N.Y. 2014), in
which the district court held that the question of whether autism caused certain
behavior was a factual issue that precluded summary judgment.
Latson further notes that the Second Circuit held in Wright v. New York
State Department of Corrections & Community Supervision, 831 F.3d 64, 73 (2d
Cir. 2016), that preventing a disabled prisoner’s access to the law library,
recreation, and work programs were examples of denial of meaningful access to
services, programs, and activities. Another district court has ruled that a prison
must evaluate a disabled inmate’s needs and the accommodations necessary to
ensure reasonable access to prison services, and failure to do so violates the ADA
and RA as a matter of law. Pierce v. District of Columbia, 128 F. Supp. 3d 250,
271-72 (D.D.C. 2015).

30

Title

II

of

the

ADA

states

that

“no qualified individual with

a disability shall, by reason of such disability, be excluded from participation in or
be denied the benefits of the services, programs, or activities of a public entity, or
be subjected to discrimination by any such entity.” 42 U.S.C. § 12132.

A

“qualified individual with a disability” is “an individual with a disability who, with
or without reasonable modifications to rules, policies, or practices . . . or the
provision of auxiliary aids and services, meets the essential eligibility requirements
for the receipt of services or the participation in programs or activities provided by
a public entity.” 42 U.S.C. § 12131(2). To state a claim for violation of Title II,
the plaintiff “must allege that (1) [he] has a disability, (2) [he] is otherwise
qualified to receive the benefits of a public service, program, or activity, and (3)
[he] was excluded from participation in or denied the benefits of such service,
program, or activity, or otherwise discriminated against, on the basis of [his]
disability.” Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d
474, 498 (4th Cir. 2005).
The defendants do not contest the first element. They appear to argue that
Latson was not otherwise qualified because of his asserted disciplinary infractions,
but that is a factual issue that is not properly resolved on a motion to dismiss.
Whether the provision of certain auxiliary aids or services would be unduly
burdensome is likewise a factual issue. The defendants’ argument that Latson did
31

not plead a denial of benefits is unavailing, as they themselves seem to implicitly
acknowledge in their reply brief. I find that Latson has stated a plausible claim of
violation of the ADA, and I will deny the Motion to Dismiss as to Count Six.
F.

Viability of RA Claim.

Though the ADA and RA are quite similar, the RA has a different causation
standard: the plaintiff’s disability must be the sole reason for the alleged
discrimination. 29 U.S.C. § 794(a). The defendants contend that the Amended
Complaint’s allegations show that the defendants’ actions were not taken solely
because of Latson’s disability, but rather because of his behavior.
Latson asserts that he has pleaded facts that satisfy the RA’s causation
standard. The Amended Complaint alleges that the defendants were aware of
plaintiff’s diagnoses and in spite of that knowledge, they (1) failed to provide
appropriate accommodations, and (2) removed Latson from the general prison
population solely because of his disabilities, depriving him of benefits and services
and subjecting him to destructive conditions.
The Fourth Circuit recently reaffirmed that the RA has a stricter causation
requirement than the ADA, “under which the disability can be one of multiple
causes.” Thomas v. Salvation Army S. Territory, 841 F.3d 632, 641 (4th Cir.
2016). “In order to establish a violation of the Rehabilitation Act for disparate
treatment, a plaintiff must prove: (1) that he has a disability; (2) that he is
32

otherwise qualified for the . . . benefit in question; and (3) that he was excluded
from the . . . benefit due to discrimination solely on the basis of the disability.”
Atkins v. Holder, 529 F. App’x 318, 319–20 (4th Cir. 2013) (unpublished).
Latson has alleged that his behavior was caused by and inextricably linked
to his disabilities. He has alleged that the defendants severely punished him for
what were essentially symptoms and manifestations of his disabilities. At this
procedural stage, I find that Latson has set forth sufficient allegations for his RA
claim to move forward. Because I find that he has stated a plausible claim under
the RA, I will deny the Motion to Dismiss as to Count Seven.
G.

Individual Defendants’ Personal Involvement in Alleged Acts.

The defendants contend that Latson’s § 1983 claims should be dismissed
because he has not specifically alleged the personal involvement of each individual
defendant.

The Amended Complaint admits that Latson does not know the

identities of the persons who placed him in segregation after he was conditionally
pardoned. The defendants assert that Clarke, who is based in Richmond, could not
have been involved in the day-to-day operations of MCTC. Regarding the failure
to provide Latson a hearing before placing him in segregation, the defendants
argue that the plaintiff does not allege who was responsible for providing a
hearing. The defendants suggest that neither Clarke nor the warden would have
had that responsibility. Finally, the defendants contend that knowledge of a DOJ
33

investigation of MCTC does not create sufficient notice of constitutional
violations, as Latson does not allege that the DOJ issued any findings.
In response, Latson states that the allegations show that the defendants were
continually made aware that he was being treated inhumanely and that his mental
state was deteriorating. The Amended Complaint alleges that Robichaux was
notified of violations and that Robichaux and Jarvis personally reviewed and
approved decisions regarding plaintiff’s housing situation.

The Amended

Complaint further alleges that the individual defendants had primary responsibility
for operation of MCTC, set policies and procedures, and directly supervised
employees.

Therefore, according to Latson, the allegations show that the

individual defendants were personally aware of and involved in the continued
deprivation of his rights.
Under 42 U.S.C. § 1983, “Government officials may not be held liable for
the unconstitutional conduct of their subordinates under a theory of respondeat
superior.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Therefore, “a plaintiff
must plead that each Government-official defendant, through the official’s own
individual actions, has violated the Constitution.” Id.
For supervisory prison officials to be held liable under § 1983
for constitutional injuries inflicted by their subordinates, an inmate
must establish that: (1) the supervisor had actual or constructive
knowledge that his subordinate was engaged in conduct that posed a
pervasive and unreasonable risk of constitutional injury; (2) the
supervisor’s response to this knowledge was so inadequate as to show
34

deliberate indifference or tacit authorization of the offensive practices;
and (3) there was an affirmative causal link between the supervisor’s
inaction and the particular constitutional injury suffered.
Wilkins v. Upton, 639 F. App’x 941, 945 (4th Cir. 2016) (unpublished) (citing
Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994)). “Receipt of letters by prison
officials may be evidence of personal knowledge of unconstitutional conditions.”
Wright, 766 F.2d at 850.
Latson’s allegations fall close to the line separating vicarious liability from
direct liability. However, I find that he has pleaded enough facts regarding the
involvement of the individual defendants to state plausible claims against them
pursuant to § 1983. The plaintiff has alleged that Robichaux and Jarvis personally
reviewed and approved decisions regarding his segregation and treatment, which
plausibly includes decisions about his medical care and the failure to provide a presegregation hearing.

These allegations, if true, could show their direct

involvement; Latson does not seek to hold them liable merely on the ground that
they supervised employees who deprived him of his constitutional rights.
The Amended Complaint’s allegations with respect to Clarke are somewhat
weaker, but I find that they satisfy the elements recited in Wilkins. The plaintiff
has alleged that Clarke sent Latson’s attorney an electronic calendar invitation to
speak about Latson, presumably in response to complaints voiced by the attorney.
The plaintiff has further alleged that Clarke was copied on letters that Latson’s
35

counsel sent to the Governor regarding Latson’s situation at MCTC. A reasonable
inference from the Amended Complaint is that Clarke was aware of the DOJ’s
investigation and interview of Latson and that he also learned of the national press
attention surrounding Latson’s conditions and treatment. Viewed in the light most
favorable to Latson, the alleged facts could show that the behavior discussed in
these communications and publications demonstrated a pervasive and unreasonable
risk of constitutional injury, and yet Clarke failed to take any action, which a fact
finder could conclude demonstrated deliberate indifference or tacit authorization of
Latson’s treatment at MCTC. A jury may find that had Clarke intervened, Latson
would have received treatment for his disabilities and been removed from
segregation or provided with the needed stimulus to prevent the deterioration of his
condition. A jury could also find that Clarke would have prevented Latson from
being placed into segregation without a hearing following his transfer from
Rappahannock, and that Clarke would have directed that Latson be placed in a less
harsh environment following his pardon. Latson has thus adequately pleaded the
causation element.
I find that Latson has alleged sufficient facts to establish claims of direct
liability under § 1983 as to Robichaux, Jarvis, and Clarke.

36

H.

Viability of Conditions of Confinement Claim.

The defendants contend that, for various reasons, Count One of the
Amended Complaint fails to state a claim upon which relief can be granted. The
defendants assert that Latson had no right to avoid uncomfortable prison conditions
and that the Eighth Amendment only protected him from conditions that imposed
atypical and significant hardships — a standard they argue the alleged facts do not
meet as a matter of law. The defendants point to cases in which the Fourth Circuit
has held that lengthier periods of solitary confinement did not constitute cruel and
unusual punishment. See Mickle v. Moore (In re Long Term Admin. Segregation of
Inmates Designated as Five Percenters), 174 F.3d 464, 471-73 (4th Cir. 1999);
Williams v. Branker, 462 F. App’x 348, 354 (4th Cir. 2012) (unpublished). The
defendants also argue that the plaintiff had no right to choose where he was housed
and that the defendants had a duty to protect him from harm caused by other
inmates.
The defendants argue that lack of stimulation, inability to purchase food, and
inability to purchase discretionary items do not amount to constitutional violations.
They argue that Latson’s weight loss and intermittent receipt of Ensure do not
show that he was deprived of adequate food. The defendants likewise argue that
the lack of a toothbrush and toilet paper and the extended presence of blood in
Latson’s cell did not violate the Eighth Amendment because they did not deprive
37

Latson of a single, identifiable human need. They contend that their decision to
segregate Latson was based on his risk of aggression toward others, and that their
decision is entitled to deference.
The defendants argue that Latson cannot recover for any mental or
emotional injury without showing that he suffered a physical injury. They assert
that his alleged conditions of confinement were less severe than others which the
Fourth Circuit has found to be constitutional. See Beverati v. Smith, 120 F.3d 500,
503-04 (4th Cir. 1997). They further argue that Latson has not adequately alleged
that the defendants had actual knowledge of his conditions of confinement, and
that complaints by Latson’s family and friends do not show actual knowledge on
the part of the defendants.
The defendants contend that Latson’s allegations are insufficient to establish
supervisory liability because they do not show that the defendants were
deliberately indifferent to Latson’s health or safety. They argue that any injuries
Latson suffered could have been caused by events that occurred before he was
transferred to Rappahannock and MCTC. They contend that he cannot use § 1983
to assert claims against individual officials that seek to vindicate rights create by
the ADA and RA.
Finally, regarding his post-pardon conditions, the defendants note that
Latson agreed to remain at MCTC while awaiting transport to AdvoServ.
38

Therefore, they assert that he consented to his conditions of confinement between
the date of his pardon and the date of his release from MCTC.
The Eighth Amendment “protects inmates from inhumane treatment and
conditions while imprisoned.” Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir.
1996). It “imposes a duty on prison officials to provide humane conditions of
confinement and ensure that inmates receive adequate food, clothing, shelter, and
medical care.” Scinto v. Stansberry, 841 F.3d 219, 225 (4th Cir. 2016).
To sustain an unconstitutional conditions claim, a prisoner must show that:
(1) objectively, he suffered a deprivation that was sufficiently serious, in that the
challenged official acts caused denial of “the minimal civilized measure of life’s
necessities”; and (2) subjectively, the defendant prison officials acted with
“deliberate indifference to inmate health or safety.” Farmer v. Brennan, 511 U.S.
825, 834 (1994). The prisoner must show “significant physical or emotional harm,
or a grave risk of such harm,” resulting from the challenged conditions. Shakka v.
Smith, 71 F.3d 162, 166 (4th Cir. 1995). Moreover, “[a] prisoner states a claim
under the Eighth Amendment when he plausibly alleges that the conduct in
question was motivated by a desire to harass or humiliate rather than by a
legitimate justification, such as the need for order and security.”

King v.

Rubenstein, 825 F.3d 206, 219 (4th Cir. 2016). Conditions that do not violate the
Eighth Amendment on their own may amount to cruel and unusual punishment
39

when combined if “they have a mutually enforcing effect that produces the
deprivation of a single, identifiable human need such as food, warmth, or exercise
— for example, a low cell temperature at night combined with a failure to issue
blankets.” Wilson v. Seiter, 501 U.S. 294, 304 (1991).
I find that Latson has stated a plausible conditions of confinement claim.
Several of the defendants’ arguments rely on alleged facts not apparent from the
face of the Amended Complaint and require credibility determinations; thus, they
cannot be resolved on a motion to dismiss. While the Fourth Circuit has held that
similar conditions of confinement complied with the Eighth Amendment, I cannot
say at this stage of the proceedings, without the benefit of any evidence, that
Latson’s conditions were identical or even comparable to those addressed in the
other cases cited by the defendants. It is plausible that the alleged conditions
combined to deprive Latson of the single, identifiable human need of mental health
and sanity.
I find that Latson has pleaded sufficient facts that, if true, could show that
the defendants had actual knowledge of his mental health and medical conditions
and of his conditions of confinement. The defendants’ actual state of mind is a
question of fact. As for the lack of a physical injury, Latson is only required to
show a serious risk of physical or emotional harm. Shakka, 71 F.3d at 166. I find
that he has alleged facts that plausibly show such a risk. I will deny the Motion to
40

Dismiss to the extent that it is based on a purported failure to state a conditions of
confinement claim upon which relief can be granted.
I.

Viability of Lack of Medical Care Claim.

The defendants move for dismissal of Count Two on the ground that it fails
to state a cognizable claim for violation of the Eighth Amendment based on a lack
of adequate medical care. They assert that they are not medical professionals and
were not required to ensure that medical staff employed proper medical procedures
or provided appropriate treatment. They also argue that Latson has not pleaded
facts showing the individual defendants’ personal involvement in any denial of
treatment, nor has he alleged facts that could establish supervisory liability. The
defendants point to Latson’s allegation that he was given antipsychotic medication
as a concession that he did, in fact, receive mental health treatment.
“[A] prison official’s deliberate indifference to serious medical needs of
prisoners constitutes the unnecessary and wanton infliction of pain proscribed by
the Eighth Amendment.” Scinto, 841 F.3d at 225. “The plaintiff must show that
he had serious medical needs, which is an objective inquiry, and that the defendant
acted with deliberate indifference to those needs, which is a subjective inquiry.”
Heyer v. U.S. Bureau of Prisons, 849 F.3d 202, 209-10 (4th Cir. 2017).
Allegations that the plaintiff’s condition was “longstanding, pervasive, welldocumented, and expressly noted by prison officials” are sufficient to show
41

deliberate indifference. Scinto, 841 F.3d at 229. The Fourth Circuit has held that
“a doctor’s failure to provide care that he himself deems necessary to treat an
inmate’s serious medical condition may constitute deliberate indifference.”
Jackson v. Lightsey, 775 F.3d 170, 179 (4th Cir. 2014). Prison officials who are
not medical providers can exhibit deliberate indifference to serious medical needs
by intentionally denying access to care or intentionally interfering with prescribed
treatment. Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). “[T]he mere fact that
prison officials provide some treatment does not mean they have provided
constitutionally adequate treatment.”

Heyer, 849 F.3d at 211.

The treatment

provided by a prison must be adequate to address the prisoner’s serious medical
need. Id.
I find that Count Two states a plausible § 1983 claim for violation of the
Eighth Amendment based on denial of adequate medical care. The defendants do
not dispute that Latson had serious medical needs. Latson has alleged that medical
staff prescribed certain treatment and that the individual defendants prevented or
interfered with the provision of that treatment. These allegations are adequate to
state a claim, and I will deny the Motion to Dismiss to the extent it argues that
Count Two does not set forth a viable Eighth Amendment claim.

42

J.

Viability of Due Process Claim.

The defendants seek dismissal of Count Three, arguing that it fails to state a
claim upon which relief can be granted.

They argue that Latson had no

constitutionally protected interest in avoiding segregation, and that he has not
alleged that the MCTC policy requiring a pre-segregation hearing was a state
regulation sufficient to create a constitutional interest. The defendants argue that
their alleged failure to follow an internal policy or procedure does not create a
constitutional claim.

They further contend that the alleged conditions of

confinement were not extreme enough to require procedural protection, and in any
event, MCTC’s process was sufficient. Though Latson did not receive a presegregation hearing, he alleges that he received one several weeks after being
placed in segregation and that his SRP was suspended and reinstated several times,
which the defendants contend shows adequate process was provided.
To state a procedural due process claim, a plaintiff must allege facts showing
that (1) he had a protectable liberty interest, and (2) he was not afforded minimally
adequate process to protect his liberty interest. Incumaa v. Stirling, 791 F.3d 517,
526 (4th Cir. 2015). Prisoners have an interest in avoiding hardships that are
“atypical and significant . . . in relation to the ordinary incidents of prison life.”
Sandin v. Conner, 515 U.S. 472, 484 (1995). Though the constitution itself does
not create a protected interest in avoiding specific prison conditions, “a liberty
43

interest in avoiding particular conditions of confinement may arise from state
policies or regulations.” Wilkinson v. Austin, 545 U.S. 209, 222 (2005).
In Wilkinson, the Supreme Court found that certain conditions of segregated
confinement which “standing alone might not be sufficient to create a liberty
interest, taken together . . . impose an atypical and significant hardship within the
correctional context.” 545 U.S. at 224. Therefore, the conditions alleged gave rise
to a protected liberty interest. Id. The Court focused on the severe limitation of
human contact, that placement in segregation was indefinite, and that placement
disqualified inmates from parole eligibility. Id.

However, the Court found that

the state’s policy regarding placement of prisoners in segregation provided
sufficient procedural protection of that interest.

Id.

The Court reached this

conclusion in part because the policy offered the inmate notice of the reasons he
was being placed in segregation and an opportunity to rebut those reasons. Id. at
226-27.

The policy also provided multiple levels of review of decisions

recommending segregation, as well as a review thirty days after an inmate’s
placement into segregation. Id. at 227.
The Fourth Circuit has held that in order to state a procedural due process
claim, “inmates must first establish that an interest in avoiding onerous or
restrictive confinement conditions arises from state policies or regulations (e.g., a
regulation mandating periodic review).” Incumaa v. Stirling, 791 F.3d 517, 527
44

(4th Cir. 2015). Once the prisoner has cleared that hurdle, the next question —
whether the alleged conditions are atypical and substantially harsh — is a factspecific one. Id. The court must first determine the ordinary incidents of prison
life for the particular inmate, and then the court must determine whether the
alleged “conditions impose atypical and substantial hardship in relation to that
norm.” Id. at 527. The fact-intensive nature of this inquiry makes it difficult to
resolve on a motion to dismiss.
Here, Latson has alleged conditions of confinement that appear to be
analogous to those found to create a liberty interest in Wilkinson. He has plausibly
alleged that a policy of the Commonwealth mandated a pre-segregation hearing
and that he was not provided one. He has alleged that he was not given timely
opportunities to understand the reasons for his confinement or to rebut those
reasons. I conclude that Latson has stated a plausible procedural due process
claim, and I will deny the Motion to Dismiss to the extent that it contends that
Count III fails to state a viable claim.
K.

Viability of Equal Protection Claim.

The defendants seek dismissal of Count Four for failure to state a claim on
which relief can be granted. The defendants assert that Latson’s equal protection
claim is fatally flawed because he has not identified any other prisoners who were
treated differently than him. Instead, the defendants argue, Latson complains that
45

he was punished for actions that were manifestations of his disabilities and that he
was not given accommodations. The defendants also contend that their treatment
of Latson was rationally related to the legitimate penological interest in
maintaining prison order and security, and that Latson has not alleged facts that
would establish supervisory liability.
“To succeed on an equal protection claim, a plaintiff must first demonstrate
that he has been treated differently from others with whom he is similarly situated
and that the unequal treatment was the result of intentional or purposeful
discrimination.” King, 825 F.3d at 220. If the plaintiff has established disparate
treatment, then the court will consider whether the difference in treatment is
justified under the applicable level of scrutiny. Id.
I agree with the defendants that Latson has not stated a plausible equal
protection claim. Viewing the allegations in the light most favorable to Latson, the
Amended Complaint could be read to allege that non-disabled inmates were
provided a pre-segregation hearing while he was not. Such an allegation would
appear to be speculative at best, since the Amended Complaint does not identify
any other inmates or allege any facts regarding the privileges they were afforded or
whether they were similarly situated to Latson. Because Latson has failed to plead
any disparate treatment on the basis of his disability, it is unnecessary to analyze

46

whether such treatment was justified under the applicable level of scrutiny. I will
grant the Motion to Dismiss as to Count Four.
L.

Viability of First Amendment Claim.

In Count Five, Latson alleges that he exercised his constitutionally protected
freedom of speech by communicating with his advocates and the Governor, and
that Robichaux and Clarke retaliated against him by placing him in segregation and
revoking all of his privileges after he was pardoned. He further alleges that this
retaliation adversely affected the exercise of his rights because while in
segregation, he could not communicate with people outside the prison, and he
feared further retaliation, which had a chilling effect.
The defendants move to dismiss this count for failure to state a claim upon
which relief can be granted. The defendants contend that the Amended Complaint
does not allege facts showing that Robichaux and Clarke intended to retaliate
against Latson for exercising his free speech rights. They assert that because
Latson was the only pardoned inmate at MCTC, their sole option for housing him
separately from the other inmates was to house him solitarily. They note that more
than a week passed between when Latson applied for a pardon and when he was
returned to segregation following his pardon, asserting that the passage of time
shows that his placement into segregation was not a retaliatory act. The defendants
also argue that Latson was placed in segregation for his own protection and that by
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agreeing to remain at MCTC while awaiting transport to AdvoServ, Latson
consented to the conditions of his confinement.
“The First Amendment right to free speech includes not only the affirmative
right to speak, but also the right to be free from retaliation by a public official for
the exercise of that right.” Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 685 (4th
Cir. 2000). To state a First Amendment retaliation claim, Latson must allege facts
showing that (1) he engaged in constitutionally protected speech, (2) the
defendants took retaliatory action that adversely affected Latson’s protected
speech, and (3) “a causal relationship exists between [Latson’s] speech and the
[defendants’] retaliatory action.” Tobey v. Jones, 706 F.3d 379, 387 (4th Cir.
2013).
The Amended Complaint easily satisfies the first element. An inmate has a
First Amendment right to communicate with counsel. Al-Amin v. Smith, 511 F.3d
1317, 1333-34 (11th Cir. 2008). The First Amendment also protects an inmate’s
right to send non-legal personal correspondence. See, e.g., Hayes v. Idaho Corr.
Ctr., No. 14-35078, 2017 WL 836072, at *4 (9th Cir. Mar. 3, 2017); Berenguel v.
Bell, 283 F. App’x 293, 295 (5th Cir. 2008) (unpublished).
To establish that the defendants’ alleged retaliatory action adversely affected
Latson’s speech, Latson must aver facts showing that “a similarly situated person
of ordinary firmness reasonably would be chilled by the government conduct in
48

light of the circumstances presented in the particular case.” Blankenship v.
Manchin, 471 F.3d 523, 530 (4th Cir. 2006). This is a fact-sensitive inquiry that
requires the court to consider “the status of the speaker, the relationship between
the speaker and the retaliator, and the nature of the retaliatory acts.” Id. “[A] chill
is likely when the state actor has engaged the punitive machinery of the
government in order to punish an individual for speaking out.” Ruttenberg v.
Jones, 283 F. App’x 121, 130 (4th Cir. 2008) (unpublished).
Latson has adequately pleaded this element. He has alleged that following
his pardon, when he was no longer a VDOC responsible inmate but was simply
awaiting transfer to AdvoServ, he was subjected to severe conditions that are used
to punish inmates for disciplinary infractions. He has alleged that the defendants
stripped him of all of his privileges and not only housed him in a cell by himself,
but deprived him of any kind of stimulus. Though I do not yet know what the
evidence will show, it is difficult to imagine a legitimate reason for depriving a
pardoned former inmate of things like books or his music player. A jury could
conclude that the alleged retaliatory acts would chill the speech of a reasonable
person in Latson’s circumstances.
Latson must also show that but for his exercise of his First Amendment
rights, Robichaux and Clarke would not have revoked all of his privileges and
placed him in solitary confinement following his pardon. See Hartman v. Moore,
49

547 U.S. 250, 256 (2006) (explaining that “retaliation is subject to recovery as the
but-for cause of official action offending the Constitution”); Tobey, 706 F.3d at
390–91. At this stage of the proceedings, I conclude that Latson has averred
sufficient facts to satisfy this element. While Latson has alleged that he was
physically placed into segregation by unknown correctional officers, he has also
adequately alleged the personal involvement of Robichaux and Clarke, as
explained above. Taken as a whole, the allegations suggest but-for causation; the
Amended Complaint reveals no punitive or otherwise legitimate basis for the
Spartan conditions to which Latson was allegedly subjected following his pardon.
I find that Latson has adequately stated a claim of First Amendment Retaliation,
and I will therefore deny the Motion to Dismiss to the extent it argues that Count
Five fails to state a claim upon which relief can be granted.
M.

Eleventh Amendment Immunity from ADA Claim.

The defendants contend that the Eleventh Amendment renders them immune
from liability under the ADA because Latson has not stated an actual Fourteenth
Amendment violation. According to the defendants, if Latson’s § 1983 claims are
dismissed, his ADA claim must also be dismissed for lack of jurisdiction. Though
they are not issues of subject-matter jurisdiction, Eleventh Amendment immunity
questions should be resolved “as soon as possible after the State asserts its
immunity.” Constantine, 411 F.3d at 482.
50

Latson relies upon Constantine to argue that the Eleventh Amendment does
not bar his ADA claim. Considering an Eleventh Amendment immunity challenge,
the Fourth Circuit in Constantine concluded that “Title II of the ADA is valid
[Fourteenth Amendment] § 5 legislation, at least as it applies to public higher
education.” Id. at 490. “Because Congress clearly expressed its intention to
abrogate the States’ Eleventh Amendment immunity, and did so pursuant to a valid
exercise of constitutional authority, the Eleventh Amendment poses no bar to [the
plaintiff’s] claims under Title II of the ADA.” Id. A year later, in an unpublished
per curiam opinion, the Fourth Circuit declared that the Eleventh Amendment does
not bar a prisoner’s ADA claim against prison officials. Pearson v. Cushwa, 211
F. App’x 158, 159 n.* (4th Cir. 2006) (unpublished) (citing Constantine).
After Constantine was decided, however, the Supreme Court issued its
decision in United States v. Georgia, 546 U.S. 151 (2006).

In Georgia, a

paraplegic state inmate asserted various claims against the state, including claims
for money damages under Title II of the ADA. Id. at 156. The plaintiff had
“alleged deliberate refusal of prison officials to accommodate [his] disabilityrelated needs in such fundamentals as mobility, hygiene, medical care, and
virtually all other prison programs.” Id. at 157.
Finding that these allegations plausibly stated violations of both the Eighth
Amendment and Title II of the ADA, the court noted that the plaintiff’s “claims for
51

money damages against the State under Title II were evidently based, at least in
large part, on conduct that independently violated the provisions of § 1 of the
Fourteenth Amendment.” Id. Thus, the ADA claims in Georgia differed from
those in prior Supreme Court cases that had not been premised upon
unconstitutional acts. Id. at 157-58. The Court declared that “insofar as Title II
creates a private cause of action for damages against the States for conduct
that actually violates the Fourteenth Amendment, Title II validly abrogates state
sovereign immunity.” Id. at 159. The Court suggested that the lower court should
determine,
on a claim-by-claim basis, (1) which aspects of the State’s alleged
conduct violated Title II; (2) to what extent such misconduct also
violated the Fourteenth Amendment; and (3) insofar as such
misconduct violated Title II but did not violate the Fourteenth
Amendment, whether Congress’s purported abrogation of sovereign
immunity as to that class of conduct is nevertheless valid.
Id. In accord with the Supreme Court’s instruction, I will apply this framework to
analyze whether the Eleventh Amendment bars Latson’s ADA claim.
In his ADA claim, Latson contends that the defendants failed to
accommodate his disabilities and denied him benefits and services because of his
disabilities by (1) placing him or allowing him to remain in solitary confinement
for extended periods, (2) denying him social interaction and other stimulus,
(3) placing him in a generalized, non-accommodating correctional setting, and (4)
denying him reasonable standards of hygiene. Latson asserts that he was placed in
52

increasingly severe and punitive conditions as a result of behavior that was a
manifestation of his disabilities. He alleges that the defendants acted intentionally
or with deliberate indifference to the likelihood that pursuit of these actions and
adoption of policies that led to these actions would violate Latson’s rights and risk
serious harm. I concluded above that these allegations state a viable ADA claim.
With the exception of his placement in a generalized, non-accommodating
correctional setting, these allegations overlap with Latson’s Eighth Amendment
claims, which I have concluded are viable § 1983 claims. In Georgia, the Supreme
Court found it “quite plausible that the alleged deliberate refusal of prison officials
to accommodate Goodman’s disability-related needs in such fundamentals as
mobility, hygiene, medical care, and virtually all other prison programs” violated
both the ADA and the Fourteenth Amendment, which incorporates the Eighth
Amendment’s prohibition of cruel and unusual punishment. Id. at 157.
I conclude that Latson’s ADA claim is based on alleged conduct that, if true,
violated the Fourteenth Amendment. To the extent that his ADA claim is based on
a failure to accommodate that prevented him from accessing services such as the
law library or educational materials, which he apparently could not access while in
segregation, the Fourth Circuit’s decision in Constantine leads me to conclude that
Congress validly abrogated the states’ Eleventh Amendment immunity as to such
claims. See also Tennessee v. Lane, 541 U.S. 509, 533-34 (2004) (holding that
53

Title II of the ADA, “as it applies to the class of cases implicating the fundamental
right of access to the courts, constitutes a valid exercise of Congress’ § 5 authority
to enforce the guarantees of the Fourteenth Amendment”).

The Eleventh

Amendment therefore does not bar Latson’s ADA claim, and I will deny the
Motion to Dismiss to the extent it is based upon Eleventh Amendment immunity.
N.

Qualified Immunity as to § 1983 Claims.

The defendants contend that they are entitled to qualified immunity on
Latson’s § 1983 claims. A § 1983 claim requires proof of the following three
elements: “(1) the deprivation of a right secured by the Constitution or a federal
statute; (2) by a person; (3) acting under color of state law.” Jenkins v.
Medford, 119 F.3d 1156, 1159–60 (4th Cir. 1997). While state officials sued in
their official capacities are not “persons” under § 1983, Will v. Mich. Dep’t of State
Police, 491 U.S. 58, 71 (1989), state officials sued in their individual capacities are
“persons” within the meaning of the statute and are not absolutely immune from
suit, Hafer v. Melo, 502 U.S. 21, 31 (1991). A government official sued in his
individual capacity under § 1983 may, however, be entitled to qualified immunity.
Id. at 25 (“[O]fficials sued in their personal capacities . . . may assert personal
immunity defenses such as objectively reasonable reliance on existing law.”)
Qualified immunity “shields government officials from liability for civil
damages, provided that their conduct does not violate clearly established statutory
54

or constitutional rights within the knowledge of a reasonable person.” Meyers v.
Baltimore Cty., 713 F.3d 723, 731 (4th Cir. 2013). A defendant asserting qualified
immunity has the burden of proving the defense. Id. Qualified immunity is
immunity from suit rather than merely immunity from liability; therefore, the
question of qualified immunity should be decided before trial. Id. Of course, at
the motion to dismiss stage, I can only consider the facts alleged by the plaintiff
and must view them in the light most favorable to the plaintiff. “Most often,
however, qualified immunity is tested at the summary judgment stage after the
facts have been developed through discovery.” Alford v. Cumberland Cty., No. 061569, 2007 WL 2985297, at *3 (4th Cir. Oct. 15, 2007) (unpublished).
A court deciding the applicability of qualified immunity must determine
“whether a constitutional violation occurred” and “whether the right violated was
clearly established.” Tobey, 706 F.3d at 385. Where a plaintiff “(1) allege[s] a
violation of a right (2) that is clearly established at the time of the violation,” a
motion to dismiss on qualified immunity grounds must be denied. Evans v.
Chalmers, 703 F.3d 636, 646 (4th Cir. 2012).
I have concluded that Counts One, Two, Three, and Five of the Amended
Complaint allege plausible violations of constitutional rights. I must now attempt
to define the specific rights alleged to have been violated and determine whether
those rights were clearly established at the time of the events alleged in the
55

Amended Complaint.

The rights must be defined at the appropriate level of

specificity, neither too narrowly nor too generally. See Mullenix v. Luna, 136 S.
Ct. 305, 308 (2015); Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014); Odom v. S.C.
Dep’t of Corr., 349 F.3d 765, 773 (4th Cir. 2003).
Regarding Count One, a prisoner has an Eighth Amendment right to humane
conditions of confinement, which includes a right to receive adequate food,
medical care, and exercise. Farmer, 511 U.S. at 832; Wilson, 501 U.S. at 304-05.
The Eighth Amendment guarantees a prisoner’s right to receive the “minimal
civilized measure of life’s necessities.” Id. at 298. A prisoner has a right to avoid
deprivations that are not motivated by any legitimate penological justification, such
as the need for order and security. Rhodes v. Chapman, 452 U.S. 337, 346 (1981).
These rights were clearly established at the time of the events described in
the Amended Complaint. Because Latson has claimed that several conditions of
confinement combined to deprive him of the single, identifiable human need of
mental health and sanity, it is difficult to define the rights at issue any more
narrowly at this stage without improperly importing the specific facts of this case
into the definition of the rights allegedly violated. See Tolan, 134 S. Ct. at 1866
(noting that “courts must take care not to define a case’s context in a manner that
imports genuinely disputed factual propositions”); Hunter v. Town of Mocksville,
N.C., 789 F.3d 389, 401 (4th Cir. 2015) (stating that for a right to have been clearly
56

established, “there need not exist a case on all fours with the facts at hand”). I find
that the individual defendants are not entitled to qualified immunity as to Count
One at this early procedural stage.
As to Count Two, the specific right at issue is defined as “the right of
prisoners to receive adequate medical care and to be free from officials’ deliberate
indifference to their known medical needs.” Scinto, 841 F.3d at 236. That right, as
noted by the Fourth Circuit, has been clearly established for many years. Id.
Therefore, the defendants are not entitled to qualified immunity as to Count Two.
Count Three alleges that the individual defendants violated Latson’s
Fourteenth Amendment right to receive minimally adequate process —
specifically, compliance with a VDOC policy requiring a pre-segregation hearing
— prior to being deprived of his protected liberty interest in avoiding atypical and
significant hardship. See Incumaa, 791 F.3d at 526. The Fourth Circuit declared
in 2005 that a severe limitation of human contact, indefinite placement in
segregation, and disqualification from parole eligibility combined to create an
atypical and significant hardship. Wilkinson, 545 U.S. at 224. The VDOC policy
described in the Amended Complaint would have plainly informed the individual
defendants of the process required before imposing such a hardship. Therefore,
based on the Amended Complaint’s allegations, the individual defendants are not
at this point entitled to qualified immunity s to Count Three.
57

Finally, in Count Five, Latson has alleged that the individual defendants
violated his First Amendment right to be free from retaliation for communicating
with counsel and others outside the prison. This right was clearly established at the
time of the Amended Complaint’s alleged events. See, e.g., Suarez, 202 F.3d at
685; Al-Amin, 511 F.3d at 1333-34; Witherow v. Paff, 52 F.3d 264, 265 (9th Cir.
1995). The individual defendants thus are not entitled to qualified immunity as to
Count Five.
III.
For the foregoing reasons, it is ORDERED as follows:
1.

The Motion to Dismiss, ECF No. 93, is GRANTED IN PART AND

DENIED IN PART;
2.

The Motion to Dismiss is GRANTED as to Marion Correctional

Treatment Center, which is DISMISSED as a defendant;
3.

The Motion to Dismiss is GRANTED as to Count Four;

4.

Counts Six and Seven are DISMISSED as to defendants Robichaux,

Jarvis, and Clarke in their official capacities;
5.

The Commonwealth of Virginia is DISMISSED as a defendant; and

6.

The Motion to Dismiss on all other grounds is DENIED.
ENTER: April 20, 2017
/s/ James P. Jones
United States District Judge
58