USCA4 Appeal: 21-1714 Doc: 56 Filed: 06/14/2022 Pg: 1 of 37

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-1714

WILLIAM THORPE; FREDERICK HAMMER; DMITRY KHAVKIN; GERALD MCNABB; GARY WALL; VERNON BROOKS; BRIAN CAVITT; DEREK CORNELISON; CHRISTOPHER COTTRELL; PETER MUKURIA; STEVEN RIDDICK; KEVIN SNODGRASS,

Plaintiffs – Appellees,

v.

HAROLD CLARKE; RANDALL C. MATHENA; H. SCOTT RICHESON; A. DAVID ROBINSON; HENRY J. PONTON; MARCUS ELAM; DENISE MALONE; DR. STEVE HERRICK; TORI RAIFORD; JEFFREY KISER; CARL MANIS,

Defendants – Appellants,

and

VIRGINIA DEPARTMENT OF CORRECTIONS,

Defendant.

------------------------

PROFESSORS AND PRACTITIONERS OF PSYCHIATRY AND PSYCHOLOGY; FORMER CORRECTIONS EXECUTIVES; RODERICK AND SOLANGE MACARTHUR JUSTICE CENTER

Amici Supporting Appellant.

Appeal from the United States District Court for the Western District of Virginia, at Big Stone Gap. James P. Jones, Senior District Judge. (2:20-cv-00007-JPJ-PMS) USCA4 Appeal: 21-1714 Doc: 56 Filed: 06/14/2022 Pg: 2 of 37

Argued: January 25, 2022 Decided: June 14, 2022

Before GREGORY, Chief Judge, THACKER, Circuit Judge, and FLOYD, Senior Circuit Judge

Affirmed by published opinion. Senior Judge Floyd wrote the opinion in which Chief Judge Gregory and Judge Thacker joined.

ARGUED: Margaret Hoehl O’Shea, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellants. Vishal Mahendra Agraharkar, AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF VIRGINIA, Richmond, Virginia; Andrei Alexander Popovici, WHITE & CASE LLP, Washington, D.C., for Appellees. ON BRIEF: Mark R. Herring, Attorney General, K. Scott Miles, Deputy Attorney General, Michelle S. Kallen, Acting Solicitor General, Brittany M. Jones, Deputy Solicitor General, Laura H. Cahill, Assistant Attorney General, Rohiniyurie Tashima, John Marshall Fellow, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellants. Tara Lee, Daniel Levin, Kristen J. McAhren, Timothy L. Wilson, Jr., Nathan Swire, WHITE & CASE LLP, Washington, D.C.; Eden Heilman, AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF VIRGINIA, Richmond, Virginia, for Appellees. Jacob Frasch, Washington, D.C., Robert P. Sherman, Boston, Massachusetts, Andrew P. Valentine, DLA PIPER LLP (US), East Palo Alto, California, for Amici Professors and Practitioners of Psychiatry and Psychology. Laura Rovner, Molly O’Hara, Student Attorney, Kevin M. Whitfield, Student Attorney, Jamie Ray, Student Attorney, Student Law Office, Civil Rights Clinic, UNIVERSITY OF DENVER STURM COLLEGE OF LAW, Denver, Colorado, for Amici Former Corrections Executives. Rosalind Dillon, RODERICK & SOLANGE MACARTHUR JUSTICE CENTER, Chicago, Illinois; Daniel M. Greenfield, Roderick & Solange MacArthur Justice Center, NORTHWESTERN PRITZKER SCHOOL OF LAW, Chicago, Illinois, for Amicus The Roderick and Solange MacArthur Justice Center.

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FLOYD, Senior Circuit Judge:

In this putative class action, Plaintiffs allege that as prisoners at two of Virginia’s

supermax facilities, they have suffered severe isolation in violation of the U.S.

Constitution. Supermaxes are maximum-security prisons designed to segregate the most

dangerous prisoners from the general prison population. Their use has increased in recent

decades, in part as a response to the rise in prison gangs and violence. And conditions in

these prisons have long been recognized as “synonymous with extreme isolation.”

Wilkinson v. Austin,

(2005). They deprive prisoners of nearly all

environmental and sensory stimuli and of nearly all human contact for 22–24 hours a day.

Plaintiffs acknowledge that isolation has a place in today’s prisons. But they object

the Virginia Department of Corrections (VDOC) has not used its supermax facilities for

any legitimate penological purposes. Instead, Plaintiffs claim, Virginia and its officers

have warehoused prisoners in solitary, without any meaningful path back to general

population, to justify the profligate costs of building and running those institutions.

Plaintiffs now bring this action against VDOC and several of its officials for violating their

Eighth Amendment right to be free from cruel and unusual punishment and their Fourteenth

Amendment right to receive sufficient process.

In response, Defendants focus on qualified immunity. Even if they committed the

violations, Defendants posit, case law that existed in 2012, when their latest solitary-

confinement program went into effect, simply did not put them on notice that either the

conditions themselves or the procedures used to decide who belongs in them violated the

Constitution. The problem for Defendants, however, is that they invoke qualified

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immunity at the motion to dismiss, before any of the evidence is in. And on the facts

Plaintiffs have pleaded, Defendants cannot succeed: On the Eighth Amendment charge,

Plaintiffs have adequately alleged—even by Defendants’ own measure—that Defendants

knew the harms long-term solitary confinement causes and disregarded them. But qualified

immunity does not protect knowing violations of the law. Ashcroft v. al-Kidd,

, 743 (2011). As to the Fourteenth, Plaintiffs suggest Defendants violated even the

most foundational due process guarantees: notice and an opportunity to respond.

Defendants cannot meaningfully argue they did not know due process requires at least that

much. See Mathews v. Eldridge,

(1976).

Defendants’ contentions boil down to disagreements over the facts: what they knew

and when, and what procedures they offered in practice. But at this stage, we take

Plaintiffs’ allegations as true and affirm the district court’s denial of the motion to dismiss.

I.

Plaintiffs are prisoners living in long-term solitary confinement—some as long as

24 years—in Red Onion and Wallens Ridge State Prisons VDOC operates. They bring this

action for declarative and injunctive relief as well as damages against VDOC and several

corrections officers who created and administered their segregation program. Plaintiffs

also seek to represent a class of similarly situated prisoners. But this appeal comes to us at

an early stage: the district court’s denial of Defendants’ motion to dismiss. Well-pleaded

allegations establish the following facts.

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All Plaintiffs were originally sentenced to confinement in general population but

were at some point assigned to either Red Onion or Wallens Ridge. VDOC built these

supermaxes in the 1990s, six years after publishing a report that faulted a previous solitary

facility, Mecklenburg, for using its confinement program to fill empty beds for economic,

not penological purposes. Plaintiffs allege that Red Onion and Wallens Ridge have

followed the same practices and for the same reasons. They point to several investigations

and reports conducted by legislators and the U.S. Department of Justice that allegedly

pressured VDOC in 2012 to introduce the Step-Down program to help progress prisoners

to lower security levels through a system of incentives and periodic reviews. But even that

program, Plaintiffs now maintain, runs roughshod over basic constitutional guardrails.

Step Down offers two pathways, Special Management (SM) and Intensive

Management (IM). Both move prisoners through levels 0, 1, and 2 to a level called SL-6,

whereupon VDOC maintains prisoners receive more freedoms, but Plaintiffs allege solitary

confinement remains severe. The principal difference between IM and SM is that SM

prisoners may one day be transferred to general population, provided they have no

disciplinary infractions at SL-6, but IM prisoners may not—unless VDOC first reclassifies

them as SM.

Plaintiffs allege concerning confinement conditions. They claim to spend 22–24

hours each day in cells smaller than a parking space. Steel doors, lined with solid strips,

halt communication with others, and opaque windows obscure not just the outside but even

the inside of the prison; bright lights stay on all day and night. Plaintiffs also claim to

experience only perfunctory interactions with mental-health professionals and that

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VDOC’s answer to threats of self-harm is to strip prisoners naked, strap them to a gurney,

and feed them a liquid diet until they change their minds. As for out-of-cell time, Plaintiffs

allege they receive just one hour of non-contact visitation per week, a shower three times

a week, and one hour of exercise a day in a small cage—but they must agree to a cavity

search each time they wish to leave their cells. VDOC then denies Plaintiffs all productive

activities, save for the Challenge Series workbooks that are supposed to aid prisoners’

progress through Step Down. Adding to all that, Plaintiffs claim, they cannot earn any

good-time credits (or earn them at a much-reduced rate) and cannot receive parole.

Plaintiffs allege severe mental-health problems as a result, including psychosis,

hallucinations, suicidal acts, and permanent neurological damage.

Plaintiffs also allege deficiencies in their status reviews. For both SM and IM

designees, mill-run staff initially assess prisoners’ progress. Supervised by a Unit Manager

and a Building Management Committee (BMC), which often consists solely of the same

Unit Manager, the staff fill out weekly Status Rating Charts. A negative review on the

charts often means prisoners have to restart at level 0. Yet prisoners do not receive a

hearing, do not have access to the charts, and cannot appeal any re-start decisions. VDOC

provides two other, “formal” reviews. The Institutional Classification Authority (ICA)

conducts one, every 90 days. But the ICA, according to Plaintiffs, does not review

prisoners’ “internal” progress through the program, only their “external” assignment to the

supermax facilities. And it holds hearings that last only minutes and result in pre-filled,

rote explanations such as “Remain Segregation.” J.A. 95. The External Review Team

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(ERT) conducts another review, but only for IM prisoners. Even then, the ERT provides

no written decisions and reviews solely the original directive to place prisoners in IM. 1

On top of this, Plaintiffs challenge the metrics corrections officers use to assess their

progress through Step Down. They insist that individual officers have, by policy,

unfettered discretion to retain, regress, or even restart prisoners in Step Down for reasons

unrelated to any security concerns. As an example, Plaintiffs offer that even “prisoners

who complete all nine volumes of the Challenge Series and remain free of all infractions

have been forced to restart the program for failure to meet responsible behavioral goals,

such as poor hygiene or disrespect.” Id. at 89. On the flip side, Plaintiffs claim VDOC has

refused to harness available tools based in science and research that can help curb

aggressive behavior without inflicting severe mental harms. Altogether, Plaintiffs argue

officials designed Step Down to stock enough prisoners in Red Onion and Wallens Ridge

to justify the cost of constructing those impressive facilities—exactly what VDOC said it

would not do after Mecklenburg.

Believing their confinement conditions violate the Eighth Amendment and Step

Down’s review process violates the Fourteenth, Plaintiffs filed suit. They sought

declarative and injunctive relief, including the abolition of Step Down and the end to long-

term solitary confinement in such restrictive conditions. They also asked for compensatory

1 For a more detailed description of the confinement conditions at Red Onion and Wallens Ridge, as well as the goals and operation of the Step-Down program, see Smith v. Collins,

, 270–73 (4th Cir. 2020).

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damages, including for emotional pain and suffering. 2 As Defendants, Plaintiffs named

VDOC along with eleven of its officials who created, administered, or implemented Step

Down, including the Director of VDOC, the wardens of the two supermax facilities, several

members of the ERT, and several persons responsible for providing mental-health services.

Defendants moved to dismiss for failure to state a claim and on grounds of qualified

immunity. The district court declined. On qualified immunity, it reasoned that “when this

suit was filed in May 2019, caselaw had clearly established that the Eighth Amendment

prohibited prison officials from depriving inmates of ‘the basic human need for meaningful

social interaction . . .’ without a legitimate penological interest.” Thorpe v. Va. Dep’t of

Corr., No. 2:20CV00007,

, at *8 (W.D. Va. June 15, 2021) (citing

Porter v. Clarke,

(4th Cir. 2019)). And that, beyond caselaw, the risk

of prolonged detention in these conditions was obvious from the “extensive scholarly

literature describing and quantifying the adverse mental health effects of prolonged solitary

confinement that has emerged in recent years.”

at *7 (citing Porter,

).

The court also found that Plaintiffs have sufficiently alleged Defendants denied them

“meaningful” review required by clearly established due process principles.

at *8

(citing Incumaa v. Stirling,

(4th Cir. 2015)). Defendants now

appeal the court’s qualified-immunity rulings as to both claims.

2 Plaintiffs also challenged Defendants’ performance under a previous settlement agreement, which is not at issue in this appeal.

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II.

We review the district court’s refusal to dismiss for qualified immunity de novo,

Mays v. Sprinkle,

(4th Cir. 2021), bearing in mind that Defendants carry

the burden to demonstrate that immunity, Henry v. Purnell,

(4th Cir.

2007). And we accept all Plaintiffs’ factual allegations as true. Ray v. Roane,

(4th Cir. 2020).

III.

The Eighth Amendment inquiry proceeds in two parts: whether confinement

conditions inflict harm that is, “objectively, sufficiently serious” to deprive prisoners of

“the minimal civilized measure of life’s necessities” and whether officers subjectively

acted with “deliberate indifference to inmate health or safety” because they knew of but

disregarded the inhumane treatment. Farmer v. Brennan,

(1994)

(cleaned up) (quoting Wilson v. Seiter,

, 302–03 (1991); Rhodes v.

Chapman,

(1981)).

Defendants agree Plaintiffs have adequately pleaded both those prongs to survive a

motion to dismiss but urge the district court was wrong to deny them qualified immunity.

Qualified immunity, too, has two prongs: Courts must decide whether a constitutional right

was violated on the facts alleged and whether “the unconstitutionality of the officers’

conduct was clearly established.” Pearson v. Callahan,

(2009).

Defendants, having already accepted that Plaintiffs satisfactorily pleaded an Eighth

Amendment violation, direct their arguments towards the second. Our case law, they insist,

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did not clearly establish until the 2019 Porter decision that solitary confinement in itself

can cause severe enough harm to implicate the Eighth Amendment.

Defendants rightly observe that we assess clearly established law at the time the

wrong is committed, e.g., Mays,

, and in that way, Porter could not strip

them of immunity for acts committed before 2019. But they misapprehend the nature of

the Eighth Amendment inquiry and with it, Porter’s import. Eighth Amendment liability

comes into play only where a corrections officer appreciates the harm confinement

conditions impose yet chooses to disregard it—but qualified immunity does “not allow the

official who actually knows that he was violating the law to escape liability for his actions.”

Harlow v. Fitzgerald,

(1982) (Brennan, J., concurring). Because

Plaintiffs have adequately pleaded Defendants’ deliberate indifference, the district court

correctly denied qualified immunity at the motion-to-dismiss stage. And Porter only

buttresses that holding as it helps illustrate that the harm to Plaintiffs was “obvious”—to

explain, that is, why Plaintiffs have “plausibly alleged” just such indifference. See Thorpe,

, at *6. 3

3 Defendants repeatedly challenge the district court’s remark that the law was clearly established “when this suit was filed in May 2019.” Thorpe,

, at *8. We agree that misstates the law, but Defendants read too much into this slip. As the court went on to explain, in that very sentence, the Complaint had plausibly alleged Defendants acted “without a legitimate penological interest and despite the well-documented attendant psychological and emotional harms.”

And, as discussed, other parts of the court’s opinion relied on Porter’s reasoning to demonstrate why the harms were “obvious.”

at *6–7 (affirming the magistrate’s findings on the “subjective prong” of the analysis). On the whole, then, the court denied qualified immunity not because Porter finally acknowledged that long-term segregation can severely harm prisoners but because Plaintiffs have adequately alleged Defendants knowingly promulgated harmful conditions.

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A.

Qualified immunity fundamentally concerns itself with “fair notice.” Hope v.

Pelzer,

(2002). It “shields an officer from suit when she makes a

decision that, even if constitutionally deficient, reasonably misapprehends the law

governing the circumstances she confronted.” Taylor v. Riojas,

(2020)

(quoting Brosseau v. Haugen,

(2004) (per curiam)). But this qualified

immunity extends only as far as “the interest it protects.” Smith v. Wade,

(1983). Because “there is no societal interest in protecting those uses of a prison guard’s

discretion that amount to reckless or callous indifference to the rights and safety of the

prisoners,”

the immunity’s cloak will not embrace them. As the familiar refrain goes,

qualified immunity does not shield “those who knowingly violate the law.” al-Kidd, 563

U.S. at 743 (quoting Malley v. Briggs,

(1986)).

These principles are not passive bystanders, rhetorical flourishes courts invoke after

they have already decided on the outcome of a qualified-immunity request; they steer the

analysis from the outset to reach the result most appropriate to the particular context before

the court. Here, the Eighth Amendment prohibits only intentional conduct: a minimum of

“‘deliberate indifference’ to inmate health or safety” is required. Farmer,

(citation omitted). That means correction officers “must both be aware of facts from which

the inference could be drawn that a substantial risk of serious harm exists” and actually

“draw the inference” before liability attaches.

. It follows that when “plaintiffs

have made a showing sufficient to” demonstrate an intentional violation of the Eighth

Amendment, “they have also made a showing sufficient to overcome any claim to qualified

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immunity.” Beers-Capitol v. Whetzel,

, 142 n.15 (3d Cir. 2001). “[T]he two

inquiries effectively collapse into one.” Delgado-Brunet v. Clark,

(7th

Cir. 1996). Dismissal, in other words, remains improper so long as the officers’ mental

state remains genuinely in issue. That is why, in Ortiz v. Jordan, the Supreme Court

declined to grant qualified immunity to officers accused of disregarding prisoner safety

where the evidence at trial showed the officers were “adequately informed” of the danger

to Ortiz and could have “distance[d] Ortiz from the assailant.”

(2011).

The controversy here follows the Ortiz blueprint to a tee. Hard as Defendants try to

portray their arguments as questioning clearly established law, “the pre-existing law [is]

not in controversy”: It has long been established that “prison official[s] may be held liable

for deliberate indifference to a prisoner’s Eighth Amendment right to protection against

[inhumane conditions] while in custody if the official knows that the inmate faces a

substantial risk of serious harm and disregards that risk by failing to take reasonable

measures to abate it.”

(cleaned up) (citation omitted). What Defendants actually

demur is that they did not know, until this Court’s decision in Porter, that the solitary-

confinement conditions they promulgated posed “a substantial risk of serious harm” in

violation of the Eighth Amendment. Farmer,

; see Opening Br. 28–37.

They may well end up on the winning side of that argument after the evidence comes in,

but for now, these “fact[ual]” issues compel us to move this case forward, Ortiz,

, unless Defendants’ entitlement to qualified immunity appears on “the face of the

complaint,” Brockington v. Boykins,

(4th Cir. 2011).

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Far from settling the factual issues in Defendants’ favor, however, Plaintiffs’

allegations proffer evidence of a culpable mind. To start, the Complaint alleges each

Plaintiff has suffered from “physical and mental harms,” including “depression, anxiety,

Post-Traumatic Stress Disorder, schizoaffective disorder, psychosis, hallucinations,

insomnia, hearing voices, agitation, mood swings, bouts of disorientation, and inability to

concentrate, a rapid heartbeat, sweating, shortness of breath, [and] digestive problems.”

J.A. 39. Some Named Plaintiffs have lost as much as “30 pounds while in solitary

confinement.”

They are “often confused, frightened, isolated, and [ ] occasionally

suicidal.”

And these symptoms “manifest in as little as 10 days.” Id. at 30. But

Defendants comprise wardens, officers “responsible for the daily operations” of the two

prisons, and professionals “responsible for supervising the mental-health services within

VDOC” and “stabilization of the mentally ill.” See id. at 52. It is more than plausible that

these Defendants, who for years have had daily contact with Plaintiffs, were both “aware

of” the severe harms Plaintiffs have been suffering and could have “draw[n] the inference”

that confining Plaintiffs to solitary existence caused those harms. Farmer,

;

see

(“a factfinder may conclude that a prison official knew of a substantial risk

from the very fact that the risk was obvious”).

And the Complaint offers even more direct evidence of this “consciousness of risk,”

, when it comes to Defendants responsible for creating Step Down: the program

trains on-the-ground officers to scout for “apathy, lethargy, [and] attention deficits,” “poor

grooming,” “failure to maintain an orderly cell,” “failure to complete the Challenge

Series,” “refusal to engage in programming,” “lack of impulse control,” problematic

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“attitude,” and “disrespect towards staff”—the very symptoms solitary confinement

generates. J.A. 78; see also id. at 177, 186, 193 (Step-Down policy attached to Complaint).

The 100-page Complaint also suggests that Defendants had instituted similar

solitary-confinement systems twice before and have twice been pressured to abandon them

to abate severe mental and physical harms. First, almost forty years ago, a class of

prisoners sued VDOC over confinement conditions at another maximum-security prison,

Mecklenburg. Id. at 31. VDOC, to its credit, commissioned a Mecklenburg Study

Committee to investigate the prisoners’ allegations. After extensive consultations with

independent mental-health experts, the Committee denounced the program, closed down

Mecklenburg, and reached a comprehensive settlement to “ensure that the systematic

degeneration of the correctional operations which occurred at Mecklenburg does not occur

again at any institution in the Virginia Department of Corrections.” Id. at 31, 58–62

(brackets removed). To replace Mecklenburg, VDOC built Red Onion and Wallens Ridge,

but the prisons had been operating less than a year when, in 1999, Human Rights Watch

released a report identifying major human rights violations in both prisons. Id. at 74. The

U.S. Department of Justice then initiated an investigation into Red Onion, and threatened

another, to examine “the use of isolation” at the prison. Id. at 75, 77. And the Connecticut

Department of Corrections withdrew its prisoners from Red Onion and Wallens Ridge

following a lawsuit by the Connecticut ACLU. Id. at 75. And yet, Plaintiffs allege, their

circumstances remained unchanged, VDOC merely cladded those same conditions and

those same policies in new Step-Down garb. Id. at 77–78. Taken as true, these allegations

of expert conclusions and government investigations plausibly placed Defendants on notice

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of the full volley of harms their confinement practices created. Compare Hope, 536 U.S.

at 741–42 (concluding that reasonable corrections officers “would have known” of the

constitutional infirmity of using the hitching post as a discipline measure in part because

an Alabama Department of Corrections regulation and a Department of Justice report had

both warned against the practice).

Also relevant are the independent expert studies that “had consistently documented

the severe and often permanent damage caused by prolonged solitary confinement” in the

years leading up to VDOC’s promulgation of Step Down. See J.A. 102 (collecting journal

articles). Even judicial precedent has long noted the deleterious effects of complete

sensory deprivation. As far back as 1890, the Supreme Court recognized that prisoners

subjected to such confinement exhibited a “semi-fatuous condition” and “violent[t]

insan[ity]” and even died by suicide. In re Medley,

(1890). More

recently, the Court reiterated the “severe” risks of contemporary solitary-confinement

regimes that deprive prisoners of “almost all human contact.” Wilkinson, 545 U.S. at 223–

24. And our own Circuit has observed that “[p]rolonged solitary confinement exacts a

heavy psychological toll that often continues to plague an inmate’s mind even after he is

resocialized.” Incumaa,

.

The Court has expressly sanctioned reliance on all such “circumstantial evidence”

to prove that “a prison official had the requisite knowledge of a substantial risk”

confinement conditions pose. Farmer,

. Indeed, the “long duration” of the

conditions itself may help establish intent. Seiter,

(citation omitted). Taken

together, these allegations present far more than a mere “suggestion to the contrary” the

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Court has previously held sufficient to defeat summary judgment, let alone a motion to

dismiss. See Farmer,

. Nor can we “be certain,” this early on, “that

additional evidence is unavailable” to Plaintiffs to strengthen their claims of culpable

officer mental state.

. Given the procedural posture, the district court was right

to deny Defendants’ qualified-immunity request.

B.

Defendants advance no argument to defeat these long-accepted pleading practices.

They ask instead that we shift frames and focus not on their mental state but on the first,

objective prong of the Eighth Amendment analysis. They suggest we apply qualified

immunity to just that prong, hold that it was not clearly established by 2012 that long-term

isolation violated the Eighth Amendment, and dismiss the case before ever reaching the

subjective prong. But such a dissociative approach misconceives the purpose of the

objective prong and would crumble foundational qualified-immunity precepts.

Defendants observe that it was not until Porter (2019) that this Court held solitary

confinement “creates a substantial risk of psychological and emotional harm” “sufficient

to justify the objective prong.”

. 4 On Defendants’ view, the Court largely

rested its decision on “recent . . . advances in our understanding of psychology and new

empirical methods,” which have allowed researchers to properly quantify the “severity of

4 Because Defendants center their arguments on Porter, they appear to admit that after Porter, no reasonable officer could ignore the harms solitary confinement causes. We thus take their qualified-immunity defense to cover only 2012 (the year Step Down began) to 2019. Plaintiffs also seek declarative and injunctive relief, and qualified immunity, of course, cannot bar such actions. See, e.g., Pearson v. Callahan,

(2009).

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the adverse psychological effects attributable to prolonged placement of inmates in isolated

conditions.”

. And the Court set its decision apart from earlier ones like Sweet

v. South Carolina Department of Corrections,

(4th Cir. 1975), which it

believed “lacked the benefit of the recent academic literature . . . concerning the harmful

psychological and emotional effects of prolonged solitary confinement.” Porter,

.

Defendants correctly observe Porter was the first case in this Circuit to hold severe

isolation alone can deprive prisoners of “the minimal civilized measure of life’s

necessities,” violating the Eighth Amendment. Farmer,

(quoting Rhodes,

). But they misunderstand the upshot. The Eighth Amendment’s objective

prong measures the harm (or the risk of harm) prison conditions impose on Plaintiffs, it

asks whether those conditions in fact “resulted in unquestioned and serious deprivation of

basic human needs.” Rhodes,

. Whether the officers had any prior notice

that isolation can cause severe injury simply does not bear on that inquiry, Plaintiffs need

only to show the conditions are “objectively harmful enough.” Hudson v. McMillian,

(1992) (cleaned up) (discussing Wilson,

); see also Wilson,

(explaining that “the objective component of an Eighth Amendment prison

claim” asks only, “Was the deprivation sufficiently serious?” whereas “the subjective

component” inquires into the “culpable state of mind”). Qualified immunity, then, can do

no work at this first step; its province lies exclusively with the second.

Eventually, the district court will need to grapple with Porter. It will need to analyze

whether these Defendants, like the ones in Porter, were actually aware of “the extensive

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scholarly literature describing and quantifying the adverse mental health effects of

prolonged solitary confinement.”

. And will need to decide whether the

types of harms deemed obvious there show themselves here—or whether the conditions

Plaintiffs challenge and the harms they allege are more akin to those advanced in cases like

Sweet. Compare

(citing Defendants’ own observations of how prolonged solitary

confinement affected prisoners as well as scholarly literature to conclude that the severe

psychological and emotional harm the plaintiffs suffered “was so obvious that it had to

have been known” (citation omitted)), with Sweet, 529 F.3d at 858, 862, 864–66 (granting

qualified immunity to prison officials because the plaintiff could not establish he actually

suffered the deprivations he alleged—inadequate food and shower time, inability to engage

in religious practices, and lack of reading and writing material—and did not “claim . . . that

he has been subjected to any cruel treatment” like other prisoners “in strip cells”). Rather

than support Defendants’ piecemeal approach, however, these yet-unresolved

considerations demonstrate why it would be a mistake to decouple the two Eighth

Amendment prongs: The objective prong alone tells us nothing of Defendants’ behavior.

Defendants’ arguments were presumably inspired by how courts analyze qualified

immunity in the Fourth Amendment context. Take a prototypical case, Kisela v. Hughes,

which considered whether to immunize an officer who shot a woman for fear she would

harm a neighbor.

(2018). The Court found immunity appropriate

because the situation the officer faced—an erratic woman waiving a knife steps away from

her neighbor and refusing repeated calls to put down the weapon—was “far from an

obvious case in which any competent officer would have known” the shooting would

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violate the Fourth Amendment.

But that analysis does not pair well with the Eighth

Amendment, which does not concern itself with what “a reasonable person would have

known.” Farmer,

n.8. That a reasonable corrections officer might not

have known, before Porter, that isolation tends to cause severe injuries, simply does not

bear on whether these officers observed the injuries these Plaintiffs have pleaded and drew

appropriate inferences as to what caused those injuries.

We recognize the Ninth Circuit takes a different tack, applying qualified immunity

separately to each Eighth Amendment prong. See Est. of Ford v. Ramirez-Palmer,

, 1048–49 (9th Cir. 2002) (discussing Saucier v. Katz,

, 203–06

(2001)). But the court’s analysis fails to persuade us. In Saucier, the Supreme Court

considered an argument that “qualified immunity is merely duplicative in an excessive

force case” “because the Fourth Amendment’s guarantee was a right to be free from

‘unreasonable’ searches and seizures” and so “it would be inconsistent to conclude that an

officer who acted unreasonably under the constitutional standard nevertheless was entitled

to immunity because he ‘reasonably’ acted unreasonably.” 533 U.S. at 203 (citation

omitted). The Court acknowledged the argument had “surface appeal”; in the end,

however, it found qualified immunity to have “a further dimension”: “An officer might

correctly perceive all of the relevant facts but have a mistaken understanding as to whether

a particular amount of force is legal in those circumstances.” Id. at 204–05. The Ninth

Circuit takes that discussion to apply to the Eighth Amendment, as well. An officer, the

court believes, “could know all of the facts yet mistakenly, but reasonably” “draw the

inference” that no substantial risk of serious harm exists. Ford,

. That

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conclusion is at odds with itself. To be deliberately indifferent, an officer must not only

know of the confinement conditions but also accurately assess the risk that those conditions

deprive a prisoner of minimal civilized necessities. See Farmer,

(“Eighth

Amendment liability requires consciousness of a risk”). By definition, no liability attaches

if the officer inaccurately assesses that risk—for then she cannot be deliberately

indifferent.

Beyond these conceptual inconsistencies, the Ninth Circuit’s approach writes the

subjective inquiry out of the Eighth Amendment and with it, all assessment of Defendants’

conduct. It thus unravels qualified immunity’s very justification, like a loose stitch

unravels the entire garment. See Pierson v. Ray,

(1967) (founding the

qualified-immunity doctrine to extend protections to “good faith” mistakes). So, we side

instead with the Third, Seventh, and Eighth Circuits and decline to grant qualified

immunity on just the first, objective prong where Plaintiffs satisfactorily plead Defendants’

deliberate indifference because Defendants “could not believe that [their] actions

comported with clearly established law while also believing that there is an excessive risk

to the plaintiffs and failing to adequately respond to that risk.” Beers-Capitol,

n.15; see also Walker v. Benjamin,

(7th Cir. 2002); Miller v.

Solem,

, 1024–25 (8th Cir. 1984).

C.

Reframing the argument yet again, Defendants additionally object we cannot define

prisoners’ rights at too-high a level of generality. It is not enough, Defendants insist, to

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say the law clearly prohibited a knowing disregard of a serious injury: “To be clearly

established,” the law “must be sufficiently clear that every reasonable official would have

understood that what he is doing violates” the Eighth Amendment. Opening Br. 27

(quoting Mays,

). And, according to Defendants, no reasonable officer

would have understood that until Porter decided isolation alone can cause severe injury.

This argument suffers from the same flaw as Defendants’ call to sever the two

Eighth Amendment prongs: It overlooks the fact that Eighth Amendment liability hinges

on whether an officer deliberately ignores the harms confinement conditions cause. As we

have posited in the related context of excessive-force claims under the Eighth Amendment,

“because an officer necessarily will be familiar with his own mental state, he ‘reasonably

should know’ that he is violating the law if he acts with a prohibited motive.” Dean v.

Jones,

(4th Cir. 2021) (quoting Brooks v. Johnson,

(4th Cir. 2019)). He does not need precedent to tell him that; he can use his own “state of

mind” as “a reference point” to “assess conformity to the law.” Thompson v. Virginia,

(4th Cir. 2017); see also United States ex rel. Citynet, LLC v. Gianato,

(4th Cir. 2020) (holding qualified immunity inapplicable to allegations under

the False Claims Act (FCA) because FCA liability depends on whether a government

official “knowingly violate[s] the law” (citations omitted)); Raub v. Campbell,

, 884 n.8 (4th Cir. 2015) (“a law enforcement officer’s omission of material facts from

a warrant affidavit deprives him of qualified immunity . . . if the omission was made

intentionally or with a ‘reckless disregard for the truth’” (citation omitted)); Washington v.

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Wilmore,

, 283–84 (4th Cir. 2005) (no immunity where officials knowingly

falsified evidence to obtain a criminal conviction).

And we are not alone in this approach. As discussed, that is exactly how the

Supreme Court analyzed the matter in Ortiz. See

. Rather than looking for

precedent exactly on point, the Court reasoned that “the pre-existing law was not in

controversy” because it has long been established that a “prison official may be held liable

for deliberate indifference to a prisoner’s Eighth Amendment right to protection against

violence while in custody if the official knows that the inmate faces a substantial risk of

serious harm and disregards that risk by failing to take reasonable measures to abate it.”

(citation omitted); see also Hope, 536 U.S. at 744–45 (qualified immunity does not

shield government officials where they have “ignore[d]” a regulation “with impunity”).

And while the Court has regularly insisted on highly particularized law in the Fourth

Amendment context, it has not done the same with Eighth Amendment claims. Compare

City of Tahlequah v. Bond,

, 11 (2021) (“Such specificity is ‘especially

important in the Fourth Amendment context,’ where it is ‘sometimes difficult for an officer

to determine how the relevant legal doctrine . . . will apply to the factual situation the

officer confronts.’” (quoting Mullenix v. Luna,

(2015))), Kisela,

(same), District of Columbia v. Wesby,

(2018) (same), and

Ziglar v. Abbasi,

(2017) (same), with Hope, 536 U.S. at 738–39

(declining to inquire whether “the very action in question has previously been held” to

violate the Eighth Amendment and rejecting qualified immunity because “the risk of harm

is obvious”), Taylor,

(“Confronted with the particularly egregious facts of

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this case, any reasonable officer should have realized that Taylor’s conditions of

confinement offended the Constitution.”), and McCoy v. Alamu,

, 1364

(2021) (instructing the Fifth Circuit to reconsider an Eighth Amendment excessive-force

case “in light of Taylor”).

Insistence on finding precedent that held the same exact confinement conditions

invalid also transforms the objective prong into something that it is not. The Eighth

Amendment “does not prohibit cruel and unusual prison conditions.” Strickler v. Waters,

(4th Cir. 1993) (emphasis added). It asks instead whether the

conditions of confinement inflict harm that is, objectively, sufficiently serious to deprive a

prisoner of minimal civilized necessities. Farmer,

. “No static ‘test’” can

settle that, courts have explained. Strickler,

(quoting Rhodes,

). Even double bunking “could rise to the level of constitutional violations.” Id. at

1381. So can “a low cell temperature at night combined with a failure to issue blankets,”

Wilson,

, “overcrowding accompanied by unsanitary and dangerous

conditions,” Williams v. Griffin,

(4th Cir. 1991), and “inadequate

ventilation,” Lopez v. Robinson,

(4th Cir. 1990).

In keeping with those principles, our precedent has focused on whether a prisoner

“has come forward with . . . evidence that he has sustained . . . significant physical or

emotional injury as a result of” solitary-confinement conditions. Strickler,

(emphasis added). Correspondingly, we have denied the claim only where a plaintiff

failed to establish that “isolation from companionship, restriction on intellectual

stimulation and prolonged inactivity” has exacted any psychological or physical toll.

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Sweet,

(internal quotation marks and citation omitted); see also Mickle v.

Moore,

(4th Cir. 1999) (rejecting Eighth Amendment allegations

because “the only evidence submitted on this point were the affidavits of a few inmates”

the court deemed insufficient to assert a claim); Rhodes,

(finding “no

evidence that double celling under these circumstances . . . inflicts unnecessary or wanton

pain”). Yet in the obverse, we have felt “constrained” to deny outright grants of qualified

immunity and remand for further factfinding where the allegations have signaled prison

conditions could “amount to cruel and unusual punishment.” Sweet,

(internal quotation marks omitted). The Court in Sweet, for example, denied summary

judgment—not merely a motion to dismiss—and directed the district court to “take

additional testimony and consider in greater detail whether the health of the plaintiff may

be adversely affected by the restricted exercise rights accorded to him.”

All of this makes good sense—and not incidentally dovetails with the Eighth

Amendment inquiry into corrections officers’ mental state. For the same reasons as

discussed extensively above, Defendants cannot protect themselves based on the failure of

other plaintiffs in other cases to demonstrate severe enough harm when in this case,

Plaintiffs have adequately pleaded both that they suffered extreme injuries and that

Defendants were aware of them. The district court was right to deny immunity and give

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Plaintiffs the opportunity to prove Defendants deliberately inflicted the harm. For qualified

immunity cannot shield them if they did. 5

IV.

Our analysis of due process entails a two-part inquiry, as well. We first determine

whether Plaintiffs had a protectable liberty interest in avoiding security detention. See

Burnette v. Fahey,

(4th Cir. 2012). We then evaluate whether

Defendants failed to afford minimally adequate process to protect that liberty interest.

. Defendants raise a qualified-immunity defense on both steps. We easily dispose

of the first, because Supreme Court cases dating back to at least 2005 held materially

indistinguishable conditions trigger Fourteenth Amendment protections. As to the second,

Defendants correctly observe our Circuit has yet to determine the exact review due to

prisoners in long-term solitary confinement. But Plaintiffs allege Defendants failed to meet

even the most basic due process requirements like notice and a meaningful opportunity to

5 Plaintiffs briefly suggest an alternative theory of liability—that “subjecting prisoners to harmful conditions for no legitimate penological purpose violates the Eighth Amendment.” Resp. Br. 38 (capitalization altered). But our Circuit recognizes only two discrete Eighth Amendment paths: “conditions of confinement,” discussed here, where a plaintiff prevails upon a showing that prison officials deliberately disregarded a significant injury, and “excessive force,” which “does not require that the prisoner victim suffer a ‘significant injury’” but “does require malicious intent.”

F.3d at 97–98. Absence of penological purpose plays a part in both of these inquiries, as it helps establish that corrections officers acted with culpable mental state rather than for justifiable reasons. E.g., Lopez,

(looking to “institutional competence” and penological objectives to decide whether “prison administrators’ conduct constitutes deliberate indifference” (emphasis added)); Dean,

(asking “whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm” (emphasis added) (citation omitted)). But we do not recognize a standalone Eighth Amendment violation for lack of penological justification.

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be heard and that the criteria Defendants employ to assess solitary placements are entirely

divorced from legitimate penological interests. On those allegations—and at this litigation

stage—Defendants cannot claim immunity.

A.

“Lawful incarceration brings about the necessary withdrawal or limitation of many

privileges and rights,” but a prisoner’s liberty does not disappear entirely. Price v.

Johnston,

(1948). In our Circuit, prisoners retain a liberty interest in

avoiding confinement conditions that impose “atypical and significant hardship on the

inmate in relation to the ordinary incidents of prison life,” provided they can first establish

that interest “arise[s] from state policies or regulations.” Incumaa, 791 F.3d at 526–27

(first quoting Sandin v. Conner,

(1995); then quoting Prieto v. Clarke,

(4th Cir. 2015)).

Because “uncontroverted evidence” establishes that Step Down mandates review at

least once every 90 days, Defendants sensibly do not dispute that Plaintiffs have adequately

traced their interest to state regulations. See Incumaa,

. The parties quarrel

instead over whether the solitary conditions are sufficiently harsh and atypical. We have

no doubt that they are. We also have no doubt their harshness has been clearly established,

for confinement conditions here are even more onerous than conditions the Supreme Court

unanimously recognized gave rise to this liberty interest in 2005. See Wilkinson, 545 U.S.

at 214–15. As in Wilkinson, Plaintiffs “must remain in their cells” for about “23 hours per

day,” “have solid metal doors with metal strips along their sides and bottoms which prevent

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conversation or communication with other inmates,” have “rare” visitations “conducted

through glass walls,” and must live—and sleep—with the light on “at all times.” Id. at

214. “Aside from severity of the conditions,” Plaintiffs’ placement “is for an indefinite

period of time” and precludes parole. Id. at 214–15. Besides these deprivations the Court

deemed sufficient in Wilkinson, Plaintiffs also cannot partake in “productive activities,”

like art or education or voluntary work, must endure dehumanizing, daily cavity searches,

and lose all “good time credit” they could have otherwise earned in general population.

J.A. 71–73; see also Incumaa,

(reasoning that subjecting a prisoner “to a

highly intrusive strip search every time he leaves his cell” significantly “worse[ns]”

conditions Wilkinson already found trigger due process protections); Smith v. Collins,

(4th Cir. 2020) (confirming, after a 22-page discussion, that “there is at least

a genuine issue of material fact” as to whether the current solitary confinement conditions

in Wallens Ridge implicate a protected liberty interest established in Wilkinson).

Defendants raise two cursory objections in their opening brief. They first contend

the conditions are not so onerous as those in Wilkinson because prisoners “have an

opportunity to progress through to levels with increasingly greater privileges,” making

solitary confinement here more comparable to the conditions in Beverati v. Smith,

(4th Cir. 1997), which involved a six-month-long disciplinary segregation, or

Sandin,

, which considered one lasting thirty days. Opening Br. 57. But

Plaintiffs allege VDOC does not provide a genuine opportunity to progress through the

program—an allegation well supported by Plaintiffs’ own extended residences in Red

Onion and Wallens Ridge. See Collins,

(reversing a grant of summary

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judgment motion in VDOC’s favor because Smith argued “the Program did not provide

him with a viable path to release”). Plaintiffs also dispute Defendants’ characterization of

“increasingly greater privileges,” asserting that solitary conditions remain largely the same

throughout the entire program—not least because prisoners remain housed in the same

supermax cells. See J.A. 101–02. To survive a motion to dismiss, a complaint need only

“contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible

on its face.” Ashcroft v. Iqbal,

(2009) (internal quotation marks and

citation omitted). Plaintiffs’ allegations easily satisfy that standard.

Defendants finally suggest that while Wilkinson may have established a liberty

interest in avoiding initial assignment to administrative segregation, it did not recognize an

interest in being released from it. Nothing in Wilkinson turned on that distinction and, in

any event, we have already confirmed in Incumaa that materially similar conditions give

rise to a protected interest “in leaving” those conditions. See

. Tellingly,

Defendants do not discuss either of these arguments on reply.

We hold that by 2012, when VDOC instituted Step Down, case law had clearly

established that solitary-confinement conditions comparable to those Plaintiffs allege here

engendered a protected liberty interest under the Fourteenth Amendment. 6

6 To the extent Defendants seek qualified immunity because district courts and unpublished opinions from this Circuit have upheld solitary confinement conditions in Red Onion and Wallens Ridge, we cannot agree. As we have explained over and again, “published district court opinions, like unpublished opinions from our Court, have no precedential value,” and we do not consider them when surveying clearly established law. Collins,

n.11 (quoting Booker v. S.C. Dep’t of Corr.,

(4th Cir. 2017)).

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B.

Defendants also contest the district court’s denial of qualified immunity on the

second prong, which examines the process due. They draw primarily on Hewitt v. Helms,

which concluded that “administrative segregation is the sort of confinement that inmates

should reasonably anticipate receiving at some point in their incarceration” and,

consequently, that “the Due Process Clause requires only an informal nonadversary

review.”

(1983). Beyond that “limited due process,” Defendants

reason, no procedures have been clearly established, Baker v. Lyles,

(4th

Cir. 1990), and the multiple formal and informal levels of review Step Down provides must

certainly pass that bar.

At the outset, we observe that Hewitt considered a solitary-confinement period

lasting less than two months, imposed to investigate the plaintiff’s role in a prisoner riot.

Hewitt’s animating consideration—that prisoner “should reasonably anticipate”

administrative confinement—thus does not translate seamlessly to today’s practices of

indefinitely confining prisoners to supermax facilities. See, e.g., Mims v. Shapp,

, 951–52 (3d Cir. 1984) (finding that the Mathews balancing Hewitt employed to assess

the process due may well yield a different result when applied to “potentially limitless”

solitary confinement because its “indefinite nature” creates “a more significant liberty

interest”); Proctor v. LeClaire,

(2d Cir. 2017) (same).

Still, Defendants’ broader point is true enough—neither the Supreme Court nor this

Circuit’s precedent has clearly established the exact process prisoners must receive while

in long-term administrative segregation. Wilkinson, for example, only upheld the review

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the prison provided; it did not establish a floor governing future cases. See

, 216–17 (approving a “three-tier classification review process” that provided prisoners

a 48-hour notice, mandated correction officers to disclose their reasons for recommending

solitary placement and allowed prisoners to file written objections with the Bureau). On

the opposite end of the spectrum, Incumaa allowed a prisoner’s challenge to proceed where

the supermax provided “only a single-layered confinement review” that, by regulation, did

“not grant [prisoners] the right to contest the factual bases” for their continued solitary

detention. 791 F.3d at 534–35. Neither case thus “definitively require[d]” a particular set

of procedures. Halcomb v. Ravenell,

(4th Cir. 2021) (finding that our

case law does not clearly mandate “prior” notice of segregation hearings).

But Defendants once again mistake Plaintiffs’ arguments. Plaintiffs do not

challenge Step Down as failing to live up to Wilkinson’s multitiered standard. Nor do they

request any discrete procedures like advance notice, an opportunity to offer witnesses, or a

possibility of appeal. They assert instead, similar to plaintiffs in Incumaa, that the program

transgresses even the most foundational building blocks of due process: notice of the

charges against them and an opportunity to be heard. That is, although Step Down offers

multiple levels of review on paper, some occurring as frequently as every 30 days, not one

of those reviews actually lives up to “basic” due process scrutiny. Incumaa,

(rejecting defendants’ argument that periodic reviews per se satisfy Hewitt and

Wilkinson where plaintiffs demonstrated “the inadequacy” of those reviews).

Consider, for example, Plaintiffs’ allegations that, by policy, only the so-called

“formal” ICA and ERT hearings contemplate prisoner involvement of any kind—the

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“informal” BMC, prison-official, and counselor reviews do not provide any information to

prisoners, much less involve them in the rating process. See J.A. 88, 92 (explaining that

VDOC conducts these reviews “in secret, with no notice to the prisoner” and “does not

permit prisoners to obtain a copy of their Status Rating Charts”). And that the formal

reviews, however impressive they sound on paper, do nothing for Plaintiffs in practice.

The ICA, they allege, holds hearings lasting only moments and issues pre-filled forms that

merely document (rather than review) Plaintiff’s previously determined progress through

Step Down, doling out conclusory rationales such as “Remain Segregation” or “needs

longer period of stable adjustment.”

at 94–95. Whereas the ERT examines only “the

original decision to place the prisoner on the IM Pathway,” provides prisoners “no written

explanation of its decisions,” and conducts hearings so rarely that “[m]any IM prisoners

have never seen or heard of the ERT.”

at 97–98.

But if the Due Process Clause means anything, it requires at least “that a person in

jeopardy of serious loss be given notice of the case against him and opportunity to meet

it.” Mathews,

(cleaned up) (citation omitted). That is the “essence of due

process.” Id.; accord Mullane v. Cent. Hanover Bank & Tr. Co.,

(1950)

(“Many controversies have raged about the cryptic and abstract words of the Due Process

Clause but there can be no doubt that at a minimum they require that deprivation of life,

liberty or property by adjudication be preceded by notice and opportunity for hearing

appropriate to the nature of the case.”). That is why Hewitt demanded corrections officers

provide prisoners a notice or explanation “of the charges against” them and an “opportunity

to present [their] views” through “written statement” or “oral presentations,”

USCA4 Appeal: 21-1714 Doc: 56 Filed: 06/14/2022 Pg: 32 of 37

476, why Wilkinson insisted that officials “provide a brief summary of the factual basis for

the classification review” and allow “a rebuttal opportunity,”

, and why

Incumaa allowed prisoners to prove review committees failed “to provide a factual basis

for” their decisions, “merely rubber-stamp[ing]” solitary incarceration, 791 F.3d at 534–

35. Even Halcomb, which denied the prisoners’ request that corrections officers provide

them advance notice, recognized Supreme Court precedent requires at minimum that

prisoners “receive information at some point as to why a change in security status is being

recommended as well as an opportunity to respond.” 992 F.3d at 322 (emphasis added).

Absent these elementary requirements, established long ago, prisoners simply do not have

“a meaningful opportunity to present their case.” Mathews,

.

Defendants do not seriously argue they lacked notice of these basic due process

requirements; they merely dispute Plaintiffs’ factual allegations and urge us to take judicial

notice of several Step-Down provisions. But what we said about the motion-to-dismiss

stage in the context of the Eighth Amendment, applies with full force here, as well: We

take Plaintiffs’ allegations as true. And, notwithstanding what Step Down lays out on

paper, qualified immunity often “turn[s] on whether the multiple review mechanisms . . .

were meaningful in practice.” Collins,

. Judicial notice of Step-Down

provisions, then, cannot end the controversy, and the district court properly allowed the

Fourteenth Amendment claims to proceed.

But Plaintiffs allege yet more. The kind of meaningful review Hewitt prescribes,

they insist, contemplates that correction officers will use “institutional safety and security

(or another valid administrative justification) as their guiding principles.” Proctor, 846

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F.3d at 611. And although Hewitt appropriately recognized that periodic review must

remain “flexible” to account for “a wide range of administrative considerations,” Plaintiffs

observe the Court also held “administrative segregation may not be used as a pretext for

indefinite confinement.”

, 477 n.9. We agree. Hewitt afforded flexibility

because the State has a “manifest interest in maintaining safe detention facilities.” Proctor,

. And when a precarious situation ends, with it ends the State’s authority

to maintain prisoners in solitary confinement. See Hewitt,

n.9 (describing

the periodic-review decision as “whether a prisoner remains a security risk”); Wilkinson,

(warning against placing prisoners in solitary confinement “for insufficient

reason”); see also Kelly v. Brewer,

(8th Cir. 1975) (recognizing, as early

as 1975, that the “validity” of administrative segregation under the Fourteenth Amendment

depends upon “the existence of a valid and subsisting reason or reasons for the

segregation”); Mims,

(citing Hewitt as establishing that the

constitutionality of administrative segregation “subsists only as long as the inmate

continues to pose a safety or security risk”); Selby v. Caruso,

(6th Cir.

2013) (denying qualified immunity because “since Hewitt . . . , prison officials have been

on notice that administrative segregation may not be used as a pretext for indefinite

confinement” (internal quotation marks and citation omitted)); Quintanilla v. Bryson,

, 744 (11th Cir. 2018) (citing Hewitt, among others, for the proposition that

“officials must be guided by whether confinement in administrative segregation remains

necessary in light of . . . valid administrative justifications”). Defendants, therefore, had

clear notice after Hewitt that Step Down must reflect legitimate penological necessities.

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Yet Plaintiffs allege that Step Down placements rest on “reasons having nothing to

do with” prisoners’ security risk and everything to do with justifying the two high-ticket

supermaxes. J.A. 82. From the start, the policy advises corrections officers to rely

primarily on prisoners’ “criminal history and lifestyle” as well as whether they “are

incarcerated for a high profile and notorious crime” when deciding whether to assign

prisoners to Red Onion or Wallens Ridge.

(citation omitted). Plaintiffs argue these

considerations inappropriate because they were all sentenced to general population. Id. at

37. So rigid criteria based on prior criminal history cannot supply a penologically valid

justification and evidence instead Defendants’ goals to fill more beds. See id. at 83–84.

At the next step, Plaintiffs claim VDOC’s policy permits corrections officers to hold

prisoners at the same level, regress them, or even force them to restart the entire program

based on metrics unrelated to prison security like hygiene, rapport with guards, and

respect—metrics corrections officers themselves have described as “very subjective”

during depositions. Id. 87–91 (citation omitted). For example, Plaintiffs allege that

“VDOC has required prisoners to restart the Step-Down Program for failure to shave their

beard, use of ‘insolent language,’ . . . [and] refusal to complete the Challenge Series”

workbook. Id. at 90. And that “[p]risoners who cannot complete the workbook series

because of educational background, learning disability, cognitive disability, mental illness,

or language barrier are evaluated on the same criteria as prisoners without those disabilities

or barriers.” Id. at 89. These shortcomings, Plaintiffs suggest, demonstrate Defendants are

not interested in offering a meaningful pathway out of solitary; they seek instead to keep

prisoners in segregation for as long as possible.

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Finally, when it comes to formal reviews, Plaintiffs complain the ICA does not

review the officers’ assessment of prisoners’ progress through Step Down, just their

“external” placement in the supermax facilities. Id. at 94. But by regulation, successful

completion of Step Down “is the only avenue” to general population. Id. at 95. The ICA

review, Plaintiffs reason, thus amounts to “hollow” formalities. Proctor,

.

If proven, such dissonance between legitimate penological goals and the processes

Step Down institutes may lead a trier of fact to conclude Defendants designed the program

for an improper purpose, like economic gain. See Selby,

(“Whether a given

process is meaningful for the purposes of the Due Process Clause is a question of fact.”

(citation omitted)). Because Hewitt plainly established, in 1983, that Defendants can do

no such thing, a grant of qualified immunity would be plainly inappropriate at this stage.

V.

Though the parties frame this appeal as presenting questions of qualified immunity,

see, e.g., Opening Br. 2, Defendants appear to additionally argue that Plaintiffs fail to

plausibly allege either a facial or an as-applied due process challenge. A facial challenge,

Defendants maintain, “can only succeed by establishing that no set of circumstances exist

under which Step-Down Program would be valid,” whereas Plaintiffs pleaded only that

Step Down “does not provide many prisoners with any real opportunity from segregation.”

at 52–53 (cleaned up) (citation omitted). Nor, according to Defendants, have Plaintiffs

sufficiently alleged Defendants’ personal involvement in Step Down “as applied to them”

because Plaintiffs have not identified “any specific segregation review of their own that

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they allege failed to comport with procedural due process.”

at 53–54. Defendants do

not reprise these arguments on reply.

The Complaint makes clear Plaintiffs request both facial (“abolish the Step-Down

program”) and as-applied (“award[ ] Plaintiffs compensatory damages”) relief. See J.A.

123 (emphasis added). But the propriety of either “goes to the breadth of the remedy,”

Citizens United v. Fed. Election Comm’n,

(2010), and depends on

whether a broad constitutional judgment is required to “adjudicat[e] rights in particular

cases between the litigants brought before the Court,” Broadrick v. Oklahoma,

(1973). Down the line, if Plaintiffs succeed on their due process claim, the district

court will need to decide whether the evidence presented justifies broad relief implicating

the entire Step Down or whether Plaintiffs’ harms can be remedied through damages and

a tailored injunction. But in no case will the remedy depend on what Defendants infer from

the Complaint’s brief observation that Step Down “does not provide many prisoners with

any real opportunity from segregation.” Opening Br. at 52–53 (cleaned up) (citation

omitted).

Defendants’ arguments on the as-applied challenge fall similarly flat. To the extent

Defendants protest Plaintiffs have not adequately alleged their individual involvement, that

is simply not so. The Complaint painstakingly sets forth each Defendant’s role in either

creating or administering Step Down. See J.A. 44–52. If, on the other hand, Defendants

object that Plaintiffs have not alleged sufficient facts showcasing why their own reviews

fail constitutional requirements, the contention is impolitic at best. Plaintiffs allege, over

dozens of pages, that Defendants conduct reviews in secret, that Plaintiffs have no access

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to their informal rating charts, and that formal hearings last only moments at Plaintiffs’ cell

doors and result in conclusory assessments like “Remain Segregation.” See supra pp. 30–

31. Those allegations compellingly demonstrate why Plaintiffs lack more particularized

evidence at this point in the litigation. And they easily meet the “short and plain statement”

requirement. Fed. R. Civ. P. 8(a)(2).

VI.

For the foregoing reasons, the district court’s judgement is

AFFIRMED.

37