Jordan v. Virginia Department of Corrections et al

Filing 57

MEMORANDUM OPINION. Signed by District Judge Elizabeth K. Dillon on 9/18/2017. (tvt)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
JASON RAMON JORDAN,
Plaintiff,

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v.
VIRGINIA DEPARTMENT
CORRECTIONS, et al.,
Defendants.

Civil Action No. 7:16cv00228

By: Elizabeth K. Dillon
United States District Judge

MEMORANDUM OPINION
Jason Ramon Jordan, a Virginia inmate proceeding pro se, filed a civil rights action
pursuant to 42 U.S.C. § 1983. In his amended complaint, Jordan asserts constitutional
challenges to certain classification procedures and decisions that have resulted in his lengthy
confinement under highly restrictive living conditions at Red Onion State Prison (Red Onion).1
After review of the record, I conclude that the defendants’ motions for summary judgment must
be granted.
I. BACKGROUND
A. Red Onion Classification Policies
Jordan was transferred to Red Onion on December 9, 2012, from another VDOC prison
facility. He is serving a term of life imprisonment.2
Red Onion and Wallens Ridge State Prison house all VDOC “Level S” inmates. Level S
is reserved for inmates who must be managed in a segregation setting. When a VDOC inmate is
classified to Level S, officials transfer him to one of these facilities, where he may participate in

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In response to Jordan’s claims, the defendants first filed an answer and a motion to dismiss on behalf of
the Virginia Department of Corrections (VDOC) (Dkt. No. 27). Jordan next filed an amended complaint (Dkt. No.
32-1). The defendants have now filed motions for summary judgment on behalf of other defendants (Dkt. Nos. 39
and 48), supported with affidavits by Unit Managers Swiney and Duncan and copies of pertinent VDOC policies.
Jordan has responded to the defendants’ motions (Dkt. Nos. 42 and 54), making the motions ripe for disposition.
2

The following summary of facts about Red Onion policies and Jordan’s classification proceedings are
based on the parties’ submissions noted above and are largely undisputed.

the Segregation Reduction Step-Down Program designed to help him progress in stages toward a
return to the general prison population. (Operating Procedure (“OP”) 830.A, at 12-34, Dkt. No.
40-1.) The step-down program, first implemented in 2012, has the stated purpose to provide
“established procedures for incentive based offender management which will create a pathway
for offenders to step-down from Security level S to lower security levels in a manner that
maintains public, staff and offender safety.” (OP 830.A(I).) The program is goal-oriented:
when inmates 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. (Swiney Aff. ¶ 4, Dkt. No. 40-1.)
As described in OP 830.A(III), each newly classified Level S inmate is assessed and
assigned to the appropriate privilege level within Level S: intensive management (IM), special
management (SM), or the reentry unit (reserved for inmates within two years of release). An
inmate is assigned to IM status if evaluators determine that he has “the potential for extreme
and/or deadly violence,” as indicated by a history of violent disciplinary infractions against staff
or other inmates, or an “extensive criminal history and lifestyle that has escalated so that
extreme/deadly violence has become a behavior characteristic.” (OP 830.A(III).) The policy
expressly states that “[t]he potential for extreme or deadly violence is not eliminated despite the
offender’s daily institutional adjustment even when providing more than a year of compliant,
polite, and cooperative behavior and attitude.” (Id.) Alternatively, an inmate may be placed in
IM status because of his “routinely disruptive and threatening pattern of behavior and attitude” or
because he is “incarcerated for a notorious crime that puts [him] at risk from other offenders.”
(Id.) On the other hand, 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

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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.)
Inmates in each pathway are further sub-classified under OP 830.A as follows, starting
with IM-0 or SM-0, the most restrictive status, and ending with Security Level 6, the least
restrictive: Intensive Management (IM): IM-0, IM-1, IM-2, and Security Level 6 (also known as
the IM-SL6 Closed Pod); Special Management (SM): SM-0, SM-1, SM-2, SM-SL6 (also known
as Structured Living — Phase 1 and Phase 2). (See OP 830.A(IV)(D) and (E).) The step-down
program in OP 830.A is a so-called cognitive program that requires the inmate to complete a
workbook set called the Challenge Series, remain infraction free, meet responsible behavior
goals, and participate in self-improvement and education programs. When an inmate meets the
goals designated for a step, he may be advanced to the next step and receive the additional
privileges assigned to it. (Id.)
All Level S inmates in the IM and SM categories 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. (See OP 830.A Attach. 1-3, at 24-34, Dkt. No. 40.1.) These
restraint requirements mirror the security measures applicable during temporary terms of
segregated confinement at any VDOC facility. (OP 861.3(V)(D), at 46, Dkt. No. 40-1.) Per
policy, Level S inmates in the IM and SM pathways, like segregation inmates in other VDOC
facilities, receive meals in their cells (the same types of meals that inmates in general population
units receive), receive not less than three showers per week, and have out-of-cell recreation for
one hour, five days per week. These inmates generally can have limited telephone use, weekly
non-contact visitation, limited use of radio and television, and limited commissary purchases.
They can possess at least two library books per week, receive and send mail, and possess legal
and religious materials. The privileges an IM or SM inmate may earn when advanced a step
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include more library books per week, more commissary purchases, more non-contact visits or
telephone calls, increased TV time and channels, and even limited job possibilities.
IM or SM inmates who do not meet the standards for discipline, responsible behavior,
self-improvement, and programming can be moved back to a lower step. (OP 830.A(IV)(D)(4)
and (E)(4).) Some inmates moved back to a lower step must once again meet the pro-social
goals of that step to advance. An inmate’s refusal to participate in the step-down program may
also be grounds for a reduction in his step assignment back to IM-0 or SM-0, where he may
remain, stripped of the privileges he had earned in the higher step, until he chooses to participate.
(See gen. Swiney Aff., Dkt. No. 40-1; Duncan Aff., Dkt. No. 49.1.)
Members of the Unit Management Team, a multi-disciplinary group of staff who work in
the housing units, conduct weekly reviews to track and rate each inmate’s progress toward the
goals of his assigned step. (Duncan Aff. ¶ 11; OP 830.A(IV)(D) and (E).) They rate his
behavior as poor, acceptable, or good in each of several categories, such as personal hygiene,
standing for count, and respect. Counselors rate the inmate’s program participation every week
as incomplete, complete, or positive effort. Officers in each of these groups are encouraged to
communicate with inmates about these ratings — to acknowledge positive performance and
motivate improvement where needed. In addition, a Dual Treatment Team made up of officials
from both Red Onion and Wallens Ridge conducts informal monthly reviews of each inmate’s
progress. (Id.)
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. (OP 830.A(IV)(F).) At this point, officials assess each inmate and assign him to one
of three SL6 program pods geared to safely reintroduce him into a social environment to interact

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with other inmates and test his readiness for possible transfer out of Level S to Security Level 5,
and then to other non-segregation settings.3 (Id.)
In the SL6 step-down pod, to which most SM-2 inmates would advance, inmates may
progress through two phases. (Id.) In SL6 Phase 1, they are still in single cells, but they are
permitted to leave their cells unrestrained for movement to the shower and recreation and,
gradually, to participate in the Thinking for a Change curriculum with other inmates in groups of
up to fifteen participants. Inmates in SL6 Phase 2 are double-celled and unrestrained for showers
and recreation, have limited outside recreation with other inmates, and can walk to meals with
other inmates to eat their meals together in the dining hall.
By contrast, if an IM inmate reaches IM-2 status, he can become eligible for assignment
to the lowest security level for an IM status inmate: the IM-SL6 Closed Pod. The Closed Pod is
expressly designed “to create an opportunity for an increased quality of life for offenders
possibly facing a long term in high security.” (OP 830.A(IV)(G)(1).) Closed Pod inmates
continue to have single-celled housing, segregated showers and recreation areas, and out-of-cell
restraints, shackles, and dual escorts. Closed Pod inmates can, however, earn more privileges
than any other group of IM inmates, such as more in-pod job assignments, more programming
in-cell and in small groups in secure chairs, video visitation, and longer in-person visitation.
Policies provide that in addition to the weekly and monthly informal progress ratings by
the Unit Management Team and Dual Treatment Team, all segregation inmates, including those
participating in the step-down program, are to receive a formal review by the Institutional
Classification Authority (“ICA”) every ninety days to determine whether their segregation status
remains appropriate. (Swiney Aff. ¶ 7, Dkt. No. 40-1.) Among other actions at these reviews,
the ICA makes recommendations for step increases or reductions. (See, e.g., ICA Hearing

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Two of the SM-SL6 pods are designed for inmates with specialized needs, such as mental health issues or
other vulnerabilities. (Id.)

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Report, May 8, 2016, at 32, Dkt. No. 40-2.) Furthermore, according to OP 830.A(IV)(K)(1)(a),
“[a] team external to [Red Onion and Wallens Ridge] will perform an annual review of each
[Level S] offender’s case.” This review includes a reassessment of whether the inmate continues
to meet the criteria for Level S and/or the IM or SM path to which he has been assigned. Per
policy, all classification decisions may be appealed through the Offender Grievance Procedure,
to which Level S inmates have access. (OP 830.1(IV)(G), at 43, Dkt. No. 40-1.)
B. Jordan’s Classification Proceedings
Shortly after Jordan’s arrival at Red Onion in December 2011, the ICA conducted an
intake review of his segregation status. (Swiney Aff. Encl. D-E, Dkt. No. 40-1.) Jordan was
present, but did not make a statement. The ICA recommended that Jordan remain assigned to
administrative segregation because of recent disciplinary convictions he had incurred that
included grabbing a nurse between the legs and threatening to stab an officer who was trying to
conduct an interview about an assault. The ICA continued this recommendation at his next
review in March 2012 and in May 2012, after he incurred an infraction for stabbing another
inmate with a four-inch shank in a gang-related incident. (Id. at Encl. F.) Jordan received
regular reviews of his segregation status in July and September, and after an ICA review on
October 2012, he was assigned to the Special Management pathway, SM-0 status, under a former
version of the step-down procedure. (Id. at Encl. J, Dkt. No. 40-2.) In December 2012,
however, after an ICA review with Jordan present, the ICA recommended that his status should
be changed to the Intensive Management pathway, IM-1 status, because he needed “a longer
period of stable adjustment” and to complete the Challenge Series. (Id. at Encl. L.) The ICA
reports note that Jordan was present and made statements at most of these reviews.
Jordan received regular reviews of his segregation assignment in March, May, and
August 2013, when the ICA recommended advancing him to IM-2 status. (Id. at Encl. M-P.)
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After reviews in November 2013 and February, May, and August 2014, the ICA recommended
continuing Jordan’s IM-2 status, despite his refusal to participate in one review and his recent
commission of a disciplinary infraction. (Id. at Encl. Q-U.) In November 2014, the ICA
recommended moving Jordan back to IM-0 status because of poor institutional adjustment and
several recent disciplinary charges. (Id. at Encl. Y.) After reviews in February and May 2015,
the ICA recommended advancing Jordan to IM-1 status; he had completed the Challenge Series
and avoided disciplinary infractions for nine months. (Id. at Encl. AA.) In August 2015, the
ICA recommended IM-2 status for Jordan, and that change was approved. (Id. at Encl. BB.)
After a review in October 2015, the ICA recommended that Jordan be allowed to earn good
conduct time. (Id. at Encl. DD.) He continued at IM-2, however, after segregation reviews on
November 2015 and January 2016. (Id. at Encl. EE-FF.)
In March 2016, the Dual Treatment Team and the ICA recommended advancing Jordan
from Level S to Security Level 6; the warden approved this change, and Jordan was transferred
to the Closed Pod. (Id. at Encl. GG.) After status reviews in April, June, July, and August 2016,
the ICA recommended that he remain classified to the Closed Pod, despite the fact that he had
incurred a disciplinary conviction for threatening bodily harm and had spent some time in prehearing detention. (Id. at Encl. HH-MM.) In September 2016, however, the ICA recommended
changing Jordan from Level 6 to Security Level S again because he had incurred two
disciplinary charges while in the Closed Pod. (Id. at Encl. OO.)
At Jordan’s annual review in October, the ICA recommended that he continue to earn
good conduct time while in Level S; the report noted that Jordan had completed the first two
Challenge Series books, was working as a utensil prep worker, and was enrolled in a Distance
Learning Program. (Duncan Aff. Encl. A, Dkt. No. 49-1.) In December 2016 and March 2017,
the ICA recommended IM-0 because Jordan had not completed the step-down criteria, but after
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his review in May 2017, he was advanced to IM-1. (Id. at Encl. B-D.) The ICA report for
Jordan’s July 2017 review noted that he had stated, “Fuck that review, fuck that program.” (Id.
at Encl. F.) Nevertheless, the ICA recommended allowing him to remain at IM-1 to continue
working on the step-down goals. (Id.)
C. Jordan’s allegations
Liberally construed, Jordan’s verified amended complaint asserts claims that application
of OP 830.A on its face and as applied to him prolongs an inmate’s confinement under unfair
segregation conditions without federally required procedural protections, in violation of the Due
Process and Equal Protection Clauses of the Fourteenth Amendment, and that those conditions
violate the Eighth Amendment’s prohibition against cruel and unusual punishment. (Am.
Compl. ¶¶ 97-99, Dkt. No. 32-1.) Jordan sues VDOC administrators for the OP 830.A policy
iteself and failing to correct the alleged constitutional violations. He also sues supervisory and
treatment officials at Red Onion for the undesirable conditions and for improperly making or
failing to correct the allegedly unfair classification decisions imposed on him under OP 830.A
without sufficient due process. Jordan seeks monetary damages and injunctive relief to abolish
OP 830.A and alleviate harsh conditions at Red Onion. (Id. at ¶ 102.)
Jordan alleges that officials arbitrarily assigned him to IM status without allowing him to
be present or to offer argument, contradictory testimony, witnesses, or evidence (id. at ¶¶ 8082m 85, 91); that OP 830.A discriminates against IM inmates, who suffer a much more
restrictive environment than inmates in other forms of administrative segregation (id. at ¶ 69);
that IM status permanently prevents an inmate from working his way out of segregated
confinement at Red Onion by completing the Challenge Series, whereas SM status inmates who
complete the same series can work their way to general population (id. at ¶ 64); that review
between the various IM and SM steps is not meaningful (id. at ¶¶ 66, 86); that his progress to the
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next step has been denied numerous times without adequate explanation even when he was polite
and infraction free (id. at ¶¶ 87); that officers can purposefully report his progress inaccurately;
and unit managers or others can change his step status without notice or a hearing (id. at ¶ 6667). Jordan also complains that OP 830.A can affect inmates’ opportunities for parole and
earning good conduct time. (Id. at ¶¶ 65, 101.)
Jordan’s submissions complain generally about the restrictive conditions IM inmates
suffer, compared to SM inmates, when they progress from IM-2 to the Closed Pod. He calls the
Closed Pod a “pseudo general population” pod in which inmates have almost no out-of-cell
activity without full restraints and are housed in a secure area guarded by officers in gun posts
and others with shank proof vests and dogs. (Id. at ¶ 70-78.) Jordan complains that Closed Pod
inmates have no access to a gym, a normal recreation yard, a law library or dining hall, a job
outside the pod, or contact visits or jobs without being shackled to a chair. He alleges that IM
inmates’ cell assignments are rotated every ninety days to hamper socialization with others, and
IM inmates have no contact with inmates in other pods. He contends that these conditions are
not compliant with other VDOC policies regarding conditions for special housing units. (Id. at ¶
71.) In his unverified responses to the defendants’ motions, Jordan’s primary complaint is that
unit managers routinely approve their own recommendations for step changes, in violation of
VDOC policy. (See gen. Pl.’s Resp., Dkt. Nos. 42, 54.)
Jordon alleges that his IM status and living conditions have caused him the following
injuries: “mental illness and / or frustration of pre-existing mental illnesses / anguish /
deteriorations / night terrors”; “anxiety, headaches, loss of sleep, and (to [his] belief) akathisia”;
physical deterioration and weight loss; and deteriorating eyesight “due to constant exposure to
extremely bright fluorescent lights in cells.” (Am. Compl., at ¶ 101, Dkt. No. 32-1.) In later,
unsworn submissions, Jordan also claims that five years of invalid ICA proceedings and
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segregation have caused him emotional distress that has been diagnosed as bipolar disorder and
treated with medications at Red Onion. (Pl. Resp. 11, Dkt. No. 42.) Jordan states that he did not
take medication before his transfer to Red Onion. (Id.)
II. DISCUSSION
A. Summary Judgment Standard
Federal Rule of Civil Procedure 56(a) provides that a court should grant summary
judgment “if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” “As to materiality, . . . [o]nly disputes over
facts that might affect the outcome of the suit under the governing law will properly preclude the
entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Summary judgment is inappropriate “if the dispute about a material fact is ‘genuine,’ that is, if
the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.;
see also JKC Holding Co. v. Wash. Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001).
However, if the evidence of a genuine issue of material fact “is merely colorable or is not
significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50
(internal citations omitted). In considering a motion for summary judgment under Rule 56, a
court must view the record as a whole and draw all reasonable inferences in the light most
favorable to the nonmoving party. See id. at 255; Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir.
1994).
The moving party has the burden of showing – “that is, pointing out to the district court –
that there is an absence of evidence to support the nonmoving party’s case.” Celotex Corp. v.
Catrett, 477 U.S. 317, 325 (1986). If the movant satisfies this burden, then the non-movant must
set forth specific, admissible facts that demonstrate the existence of a genuine issue of fact for
trial. Id. at 322-23. A party is entitled to summary judgment if the record as a whole could not
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lead a rational trier of fact to find in favor of the non-movant. Williams v. Griffin, 952 F.2d 820,
823 (4th Cir. 1991); see Ennis v. Nat’l Ass’n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir.
1995) (“Mere unsupported speculation . . . is not enough to defeat a summary judgment
motion.”).
Summary judgment is not appropriate where the ultimate factual conclusions to be drawn
are in dispute. Overstreet v. Ky. Cent. Life Ins. Co., 950 F.2d 931, 937 (4th Cir. 1991). In
adjudicating a motion for summary judgment, a court may not resolve disputed facts, weigh the
evidence, or make determinations of credibility. Russell v. Microdyne Corp., 65 F.3d 1229, 1239
(4th Cir. 1995); Sosebee v. Murphy, 797 F.2d 179, 182 (4th Cir. 1986). Instead, a court accepts
as true the evidence of the non-moving party and resolves all internal conflicts and inferences in
the non-moving party’s favor. Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir.
1979).
B. Initial matters
Section 1983 permits an aggrieved party to file a civil action against a person for actions
taken under color of state law that violated “a right arising under the Constitution or laws of the
United States.” Cooper v. Sheehan, 735 F.3d 153, 158 (4th Cir. 2013). It is well settled that
neither the Commonwealth of Virginia nor any governmental entity acting as an arm of the
Commonwealth, such as the VDOC, is a “person” subject to suit under § 1983. See Will v.
Michigan Dep’t of State Police, 491 U.S. 58, 70-71 (1989). As such, Jordan cannot prevail on
any claim under § 1983 against the VDOC as a defendant. The court will, therefore, grant the
VDOC’s motion to dismiss.
To the extent that Jordan brings this action against the other defendants in their official
capacities for monetary damages for past violations, such relief is not available under § 1983. Id.

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at 70. Therefore, the court will grant defendants’ motion for summary judgment as to all such
claims.
In September 2016, counsel for the defendants filed a suggestion of death (Dkt. No. 26)
regarding the death on August 19, 2016, of defendant Elizabeth Thornton, Corrections
Operations Administrator for the VDOC. Jordan has failed to file any motion for substitution of
a proper party to any unextinguished claim he had against Thornton. See Fed. R. Civ. P. 25(a)
(allowing dismissal of claims against deceased party if no motion for substitution is filed within
ninety days from service of notice of death). Accordingly, the court will dismiss without
prejudice all claims alleged against Thornton.
Furthermore, the court will summarily dismiss without prejudice all claims against
defendant K. Stewart under 28 U.S.C. § 1915A(b)(1) for failure to state a claim.4 Stewart has
not waived service or filed a response to Jordan’s amended complaint. As such, she is not a
party to the motions for summary judgment. For the reasons discussed at length below in
granting the other defendants’ motions for summary judgment,  however, Jordan has not alleged
facts stating any actionable claim that Stewart’s participation in the challenged classification
proceedings violated his constitutional rights in any way.
C. Due Process
Jordan expressly states that he is challenging his initial classification to IM status instead
of SM status under OP 830.A and the subsequent classification adjustment decisions within that
pathway. (Am. Compl. ¶ 46, Dkt. No. 32-1.) He contends that the manner in which the
defendants reached or enforced these decisions violated his substantive and procedural federal
due process rights.

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Under 28 U.S.C. § 1915A(b)(1), the court is required to dismiss any action or claim filed by a prisoner
against a governmental entity or officer if the court determines it is “frivolous, malicious, or fails to state a claim
upon which relief may be granted.”

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The Due Process Clause of the Fourteenth Amendment prohibits a state from depriving
“any person of life, liberty, or property without due process of law.” U.S. Const. amend. XIV,
§ 1. “A liberty interest may arise from the Constitution itself, by reason of guarantees implicit in
the word ‘liberty,’ or it may arise from an expectation or interest created by state laws or
policies.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005) (citations omitted).
Jordan’s substantive due process claim fails at the outset. It is well established that “the
Due Process Clause affords [the inmate] no greater protection than does the Cruel and Unusual
Punishment Clause.” Whitley v. Albers, 475 U.S. 312, 327 (1986). Thus, Jordan’s contention
that living conditions in segregation constitute punishment without a legitimate penological
purpose and inflict physical harm on him “fall squarely within the ambit of the Eighth
Amendment — not the due process clause.” See Prieto v. Clarke, 780 F.3d 245, 251 (4th Cir.
2015). Therefore, the court will address Jordan’s complaints about the ill effects of living
conditions at Red Onion separately, under the applicable legal standard for Eighth Amendment
claims.
“To state a procedural due process violation, a plaintiff must (1) identify a protected
liberty or property interest and (2) demonstrate deprivation of that interest without due process of
law.” Prieto v. Clarke, 780 F.3d 245, 248 (4th Cir. 2015). As a convicted prisoner, Jordan does
not have an inherent, constitutionally protected liberty interest in release from a more restrictive
security classification. Id. at 221-22. A state-created liberty interest may exist, however, if
Jordan (a) points to “a basis for an interest or expectation in state regulations” in avoiding the
conditions of his confinement under the segregation classification scheme at Red Onion, Prieto,
780 F.3d at 250; and (b) shows that those conditions “impose[] atypical and significant hardship
. . . in relation to the ordinary incidents of prison life.” Sandin v. Connor, 515 U.S. 472, 484

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(1995). Only if Jordan makes both showings does the Due Process Clause require a particular
measure of procedural protection before he can be deprived of his liberty interest. Id.
The court concludes that Jordan has a state-created liberty interest here. VDOC
procedures require the ICA to conduct a focused review process before a Level S inmate may be
assigned to the IM or the SM pathway. (See, e.g., OP 861.3(IX)(A); OP 830.A(IV(b)). Policy
also provides that at least every ninety days, the ICA will review each Level S inmate —
including those participating in the step-down program — to determine whether his current
segregation status remains appropriate or should be adjusted. (See OP 861.3(IX)(A); OP
830.A(IV)(K)(5).) These review policies create a potential liberty interest for Jordan in avoiding
and in being released from the restrictive conditions of his current segregation status. See
Incumaa v. Stirling, 791 F.3d 517, 527 (4th Cir. 2016) (finding that state prison’s policy
requiring periodic classification reviews for segregation inmates created a potential liberty
interest).
The court must next determine if Jordan’s continued confinement in the various
segregation classifications within the OP 830.A categories imposes “atypical and significant
hardship” compared to the “ordinary incidents of prison life.” Sandin, 515 U.S. at 484. Absent
evidence to the contrary here, the “ordinary incidents of prison life” for Jordan are the conditions
of general population status. Incumaa, 791 F.3d at 527.
The atypical hardship requirement is a high hurdle to clear. Mere limitations on
privileges, property, and activities for administratively segregated inmates . . . fall within the
expected perimeters of the sentence imposed by a court of law.” Sandin, 515 U.S. at 485.
Moreover, it is well established that a temporary assignment to segregated confinement — thirty
days or even six months, with reduced privileges, few out-of-cell activities or socialization

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opportunities, and heightened security measures — is not atypical or significant hardship. See
Sandin, 515 U.S. at 485-86; Beverati v. Smith, 120 F.3d 500, 504 (4th Cir. 1997).
Moreover, “[t]he State’s first obligation must be to ensure the safety of guards and prison
personnel, the public, and the prisoners themselves.” Wilkinson, 545 U.S. at 227. Because “[t]he
difficulties of operating a detention center must not be underestimated,” a reviewing court must
grant prison officials “substantial discretion to devise reasonable solutions to the problems they
face” in maintaining prison security and safety. Florence v. Bd. of Chosen Freeholders, 566
U.S. 318, 326 (2012).
The Supreme Court in Wilkinson found that the supermax confinement conditions
challenged in that case imposed atypical and significant hardship under Sandin based on three
distinctive characteristics. These supermax inmates were (a) “deprived of almost any
environmental or sensory stimuli and of almost all human contact”; (b) assigned to supermax
status for “an indefinite period of time, limited only by [the] inmate’s sentence”; and (c) lost
their right to parole consideration even if otherwise eligible. Wilkinson, 545 U.S. at 214-15. The
Court held: “While any of these conditions standing alone might not be sufficient to create a
liberty interest, taken together they impose an atypical and significant hardship within the
correctional context.” Id. at 224. Similarly, in Incumaa, the Fourth Circuit found a protected
liberty interest in avoiding assignment to South Carolina’s supermax prison based on the
isolating and restrictive nature of the living conditions combined with the length and
indefiniteness of the plaintiff’s twenty-year confinement there. 791 F.3d at 531-32.
The prison policies in these cases provided “no indication how long [an inmate] may be
incarcerated [at the supermax] once assigned there,” Wilkinson, 545 U.S. at 215, because they
provided for infrequent review of the continued appropriateness of an inmate’s specific
segregation status and offered no clear criteria for him to become suitable for release from the
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supermax. Incumaa, 791 F.3d at 522-23. Officials repeatedly recommended the inmates’
retention at the supermax without providing any behavioral basis for doing so. See id. at 521-23.
Undeniably, VDOC inmates classified to Level S, particularly those assigned IM status,
are confined under highly restrictive conditions at Red Onion, including single-cell assignment,
limited out-of-cell activity and face-to-face contact with other inmates, and movement outside
the cell only in full restraints and with dual escorts. The mere existence of these conditions at
Red Onion, however, does not render confinement there atypical or significantly harsh because,
under OP 861.3(V)(D), general population inmates can expect temporary terms in segregated
confinement under similar restrictions. See Sandin, 515 U.S. at 486 (thirty days); Beverati, 120
F.3d at 504 (six months).
And in many other ways, living conditions in IM status approximate conditions for
general population inmates. As stated, IM status inmates have access to hygiene and legal
materials, telephone usage, legal counsel, medical and mental health care, library books,
commissary items, ingoing and outgoing mail services, and the grievance procedure. They may
possess property items, including religious materials, in their cells, and they receive regular
meals, laundry services, and visitation opportunities. The evidence here does not support a
finding that Jordan was subjected to the sort of prolonged, extreme deprivation of sensory stimuli
or social contact that gave rise to the concerns in Wilkinson, 545 U.S. at 214 (noting that
supermax inmates were “deprived of almost any environmental or sensory stimuli and of almost
all human contact” . . . “for an indefinite period of time”). Among other things, the record
indicates that Jordan was able to converse with officers and with other inmates, and have phone
privileges and visitation.
Jordan contends that the conditions imposed in IM status are atypical and significant
because this status is allegedly permanent. However, VDOC policies and Jordan’s own
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classification history belie this claim and demonstrate that IM status is neither permanent nor
indefinite. By participating in the procedures of OP 830.A, Jordan earned advancement from the
most restrictive segregation status of IM-0 to IM-1 and IM-2 and then to Level 6 and the Closed
Pod, where he stayed for several months. In so doing, he earned additional privileges, including
more socialization activities and the opportunity to hold a job. Even after disciplinary infractions
resulted in his reduction back to IM-0 in September 2016, within five months, he had earned
advancement to IM-1. Furthermore, the ICA records provided reflect that authorities regularly
reviewed the appropriateness of Jordan’s Level S and IM status for possible adjustment to the
SM pathway, SL6, and in time, further reductions to Security Level 5 and transfer out of
segregation altogether.
After careful review of OP 830.A, the court concludes that this step-down procedure
addresses and alleviates the isolating conditions and indefiniteness identified in Wilkinson and
Incumaa as distinguishing factors of “atypical and significant” hardships presented by a prison’s
long-term segregation scheme. An IM-0 status inmate like Jordan is subject to long-term,
restrictive conditions, but OP 830.A provides behavioral criteria for him to qualify for
incremental reductions of restrictions and increases in privileges. With concerted effort to
change his thinking and behavior as he works through the Challenge Series, he can earn his way
to enjoyment of additional social interaction and activity while in segregated confinement. OP
830.A’s steps allow him to make measurable progress toward reclassification to lower security
statuses and, ultimately, to transfer to general population conditions. As such, under OP 830.A,
an inmate’s confinement in segregation at Red Onion is, for a likely majority of inmates, only as
lengthy and restrictive as dictated by his own effort and behavior.
Jordan complains that officials can purposely use OP 830.A and allegedly fabricated
disciplinary charges to prolong an inmate’s confinement in IM condition. However, the team
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assessment approach and the multi-level review procedures built into VDOC policies protect
against such willful, individual actions to deny any one inmate the ability to move through the
steps.
Furthermore, the court finds no evidence that Jordan’s IM status has inevitably affected
the length of his confinement so as to trigger a constitutionally protected liberty interest. Sandin,
515 U.S. at 487. Nothing in the administrative segregation policies before the court indicates
that assignment to IM status terminates an inmate’s parole eligibility. Moreover, Jordan does not
state facts indicating that he was ever eligible for parole on the sentence he is serving, and the
record indicates that he has been earning good conduct time while in IM status.
For the reasons stated, the court finds no material fact in dispute on which Jordan can
establish that his confinement in IM status under OP 830.A is atypical and significantly harsh
compared to conditions contemplated by his sentence. As such, Jordan has no constitutionally
protected liberty interest in avoiding any particular security classification or reclassification
under OP 830.A. Therefore, he also has no actionable claim under § 1983 that any particular
procedural protection is constitutionally required during the OP 830.A classification and review
proceedings. Sandin, 515 U.S. at 486-87.5
Jordan also has no viable claim under § 1983 that any of the defendants have
misconstrued or misapplied the OP 830.A procedures or other VDOC policies. State officials’
failure to abide by state procedural regulations is not a federal due process issue and is, therefore,
not actionable under § 1983. Riccio v. Cty. of Fairfax, 907 F.2d 1459, 1469 (4th Cir. 1990) (“If

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The court’s conclusions in this case are consistent with past rulings rejecting due process challenges to
the VDOC’s step-down procedures. See, e.g., Obataiye-Allah v. Virginia Dep’t of Corr., No. 7:15CV00230, 2016
WL 5415906 (W.D. Va. Sept. 28, 2016) (Jones, J.), aff’d sub nom. Obataiye-Allah v. Clarke, No. 16-7413, 2017 WL
1828018 (4th Cir. May 4, 2017) (finding no constitutionally protected liberty interest in avoiding IM status under
Red Onion’s step-down procedures); Muhammad v. Mathena, No. 7:14cv00529, 2017 WL 395225 (W.D. Va. Jan.
27, 2017) (same) (Conrad, J.).

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state law grants more procedural rights than the Constitution would otherwise require, a state’s
failure to abide by that law is not a federal due process issue.”).
For the stated reasons, the defendants are entitled to judgment as a matter of law as to
Jordan’s claims that one or more of them violated due process by enacting OP 830.A or by using
these procedures to make particular classification decisions about Jordan’s segregated
confinement status. The court will grant the motions for summary judgment on Jordan’s due
process claims accordingly.
D. Equal Protection
The Equal Protection Clause generally requires the government to treat similarly situated
people alike. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985). It “does
not take from the States all power of classification, but keeps governmental decision makers
from treating differently persons who are in all relevant respects alike.” Veney v. Wyche, 293
F.3d 726, 730 (4th Cir. 2002) (internal quotation marks and citations omitted). Thus, to prove an
equal protection claim, an inmate “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.’” Id. (quoting Morrison v. Garraghty, 239 F.3d 648,
654 (4th Cir. 2001)). He must next show that the policy is not “reasonably related to [any]
legitimate penological interests.” Id. (quoting Shaw v. Murphy, 532 U.S. 223, 225 (2001)). This
element requires the inmate to “allege facts sufficient to overcome the presumption of
reasonableness applied to prison policies.” Id. Jordan does not state facts supporting these
necessary elements of his equal protection claim.
First, Jordan has not demonstrated that he was similarly situated to inmates in SM status
when officials classified him to IM-0 status. Jordan is serving a life sentence and had recently
committed serious disciplinary infractions. After these incidents, officials could lawfully treat
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him differently from other segregation inmates with histories of less serious or less recent
disciplinary convictions or sentences.
Second, Jordan does not show that he has been treated differently than any other inmate
during periodic reviews for step changes. Neither Jordan nor any other Level S inmate can
change his step status under OP 830.A merely by avoiding disciplinary convictions and being
polite. A step change requires his progress on the Challenge Series curriculum and earning the
classification officers’ recognition that he is working to make positive changes in his thinking
and behavior.
Third, while the OP 830.A step-down procedure purposefully treats SM and IM status
inmates differently, these differences are rationally related to legitimate governmental purposes.
The procedure reasonably uses the incentive of earning increased privileges and lower
restrictions to encourage improved offender behavior and self-development “in a manner that
maintains public, staff and offender safety.” OP 830.A(I). The logical connections between the
policy’s provisions and the furtherance of its legitimate penological goals are self-evident. See
Overton v. Bazzetta, 539 U.S. 126, 133 (2003) (“[I]nternal [prison] security [is] perhaps the most
legitimate of penological goals.”).
For the stated reasons, the court finds no material dispute of fact on which Jordan could
prove an equal protection violation here. Therefore, the court concludes that the defendants are
entitled to summary judgment as a matter of law and will grant their motion on this claim.
E. Eighth Amendment
Jordan contends that living conditions imposed because of his status under OP 830.A
violate the Eighth Amendment, which “protects inmates from inhumane treatment and conditions
while imprisoned.” Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir. 1996). “[T]he Constitution
does not mandate comfortable prisons,” however, and conditions that are “restrictive and even
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harsh . . . are part of the penalty that criminal offenders pay for their offenses against society.”
Rhodes v. Chapman, 452 U.S. 337, 347, 349 (1981). It is well established that only the
“unnecessary and wanton infliction of pain” implicates the Eighth Amendment. Gregg v.
Georgia, 428 U.S. 153, 173 (1976).
To sustain an unconstitutional conditions claim, a prisoner must show that: (1)
objectively, the deprivation 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).
Jordan’s allegations do not make these showings. He does not allege that he has been
deprived of any necessity for life, such as food or shelter, while in IM status. Instead, Jordan
conclusorily asserts that restrictive conditions and limited privileges and socialization
opportunities, along with his IM status itself, have caused him various mental and physical
discomforts, such as loss of sleep and weight, vision issues, headaches, and anxiety. He fails to
present facts, however, showing that any of these health concerns qualified as a serious or
significant harm or that he needed medical care for them. Jordan’s diagnosed bipolar disorder is
a serious mental health condition, but he offers no evidence that could persuade a reasonable fact
finder that his detention under IM status living conditions caused this disorder or aggravated it in
any way.6 Thus, the court finds that the defendants are entitled to summary judgment as a matter

6

In any event, Jordan mentions his bipolar disorder only in a response to the defendants’ motions. A
plaintiff cannot use a response to a motion for summary judgment to amend or correct deficiencies in the complaint
challenged by that summary judgment motion. See Cloaninger v. McDevitt, 555 F.3d 324, 336 (4th Cir. 2009).
Therefore, a claim concerning this condition is not properly before the court in this action.

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of law on Jordon’s claim that IM status has subjected him to living conditions that violated the
Eighth Amendment, and it will grant their motions as to this claim.
III. CONCLUSION
For the reasons stated, the court concludes that the defendants’ dispositive motions must
be granted. Jordan’s claims against defendant Thornton must be dismissed without prejudice
under Rule 25(a) of the Federal Rules of Civil Procedure, and his claims against defendant
Stewart must be dismissed without prejudice under 28 U.S.C. § 1915A(b)(1).
An appropriate order will be entered. 
Entered: September 18, 2017.

/s/ Elizabeth K. Dillon
Elizabeth K. Dillon
United States District Judge

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