USCA4 Appeal: 22-7279 Doc: 55 Filed: 05/24/2024 Pg: 1 of 35

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-7279

ANGEL CARTAGENA,

Plaintiff – Appellant,

v.

ALLIE LOVELL, Director of all Secure Diversionary Treatment Program; T. DOWELL, Unit Manager of S.D.T.P. Unit A-1; B. KANODE, Warden of River North Correctional Center; KILBOURNE, Chief of Housing and Programming; DR. HAYNES, Psychiatrist over S.D.T.P. Unit; CHADWICK DOTSON, Director of Virginia Department of Corrections; DAVID ROBINSON, C.C.O. of the Virginia Department of Corrections; ERIC MADSEN, In charge of Institutional Classification; CARL MANIS, Regional Administrator of the Western Region,

Defendants – Appellees.

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

PROFESSORS AND PRACTITIONERS OF PSYCHIATRY AND PSYCHOLOGY,

Amicus Supporting Appellant.

Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Robert S. Ballou, Magistrate Judge. (7:21-cv-00539-RSB)

Argued: January 24, 2024 Decided: May 24, 2024

Before NIEMEYER, AGEE, and THACKER, Circuit Judges. USCA4 Appeal: 22-7279 Doc: 55 Filed: 05/24/2024 Pg: 2 of 35

Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge Agee joined. Judge Thacker wrote a dissenting opinion.

ARGUED: Jennifer A. Wedekind, AMERICAN CIVIL LIBERTIES UNION, Washington, D.C., for Appellant. Kevin Michael Gallagher, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellees. ON BRIEF: Marisol Dominguez-Ruiz, AMERICAN CIVIL LIBERTIES UNION, San Francisco, California, for Appellant. Jason S. Miyares, Attorney General, Diana M. Abato, Senior Assistant Attorney General, D. Patricia Wallace, Assistant Attorney General, Andrew N. Ferguson, Solicitor General, Erika L. Maley, Principal Deputy Solicitor General, Annie Chiang, Assistant Solicitor General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellees. Michael P. O’Day, Baltimore, Maryland, Jacob Frasch, Washington, D.C., Andrew P. Valentine, DLA PIPER LLP (US), East Palo Alto, California, for Amici Curiae.

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NIEMEYER, Circuit Judge:

Angel Cartagena, an inmate in the Virginia Department of Corrections (VDOC)

prison system, challenges the conditions of his 18-month confinement at the River North

Correctional Center, alleging that his confinement was too restrictive and caused him

emotional distress and severe mental anguish, in violation of his First, Eighth, and

Fourteenth Amendment rights, as well as statutory prohibitions against discrimination.

Because VDOC officials determined that Cartagena was seriously mentally ill, as well as

assaultive, disruptive, and/or unmanageable and thus unable to function in the general

prison population, they assigned him to the VDOC’s Secure Diversionary Treatment

Program (SDT Program), which was offered at the River North facility. Under the

Program, an inmate is initially separated from the prison population and given treatment

with the ability, by compliance with the treatment offered, to progress from restricted

conditions to out-of-cell time and social activities. Cartagena, however, refused to comply

with the treatment regimen prescribed for him and complained of the consequential

restrictions of the Program. He also refused to receive medical treatment as needed, and

18 months into his stay at River North, he attempted suicide. After two more suicide

attempts at a more secure facility, Cartagena was committed to the prison system’s hospital

at Marion Correctional Treatment Center for intensive mental care.

The district court granted the prison officials’ motion to dismiss Cartagena’s

complaint, concluding that Cartagena had failed to state plausible claims for relief by

failing to sufficiently allege (1) a deliberate indifference by prison officials to his condition,

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(2) the deprivation of a constitutionally protected liberty interest, and (3) discrimination

because of his disability.

For the reasons that follow, we affirm.

I

The VDOC operates a large prison system that includes a wide range of institutions

with different levels of restrictions and inmate treatment. Some are high security facilities,

reserved for inmates who have a history of behavioral problems and who were convicted

of crimes for which they are serving life sentences. Others are relatively low security

facilities, appropriate for inmates serving shorter sentences for less serious crimes and

without a history of behavioral problems or prison escapes. In assigning inmates to these

various institutions, the VDOC seeks “to provide the appropriate level of security [that]

enhances public, staff, and inmate safety and reduces the operating cost of the [VDOC] by

ensuring inmates are not subjected to excessive control and management but are assigned

to the least restrictive security level necessary.” Va. Dep’t. of Corr., Operating Procedure

830.2, at 4 (eff. Oct. 1, 2021). Pursuant to that policy, the VDOC also operates institutions

dedicated to the confinement of inmates with “serious mental illnesses.” In particular, for

“seriously mentally ill” offenders who also “frequently engage in assaultive, disruptive,

and/or unmanageable behaviors,” it offers a Secure Diversionary Treatment Program (SDT

Program) at River North Correctional Center that “provides [inmates] treatment in a secure

setting.” Operating Procedure 730.3, at 7 (eff. Mar. 1, 2018). That Program “operates

within structured security regulations and procedures, and provides for programming and

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treatment services conducive with evidence based treatment protocols and individualized

treatment plans.” Id. at 2. At River North, the SDT Program includes two sub-programs

— the Enhanced Prosocial Interaction Community (EPIC) and the Secure Communicative

and Reintegration Environment (SCORE). The SCORE unit is the more restrictive of the

two. As VDOC officials explain, offenders housed there begin in a relatively restricted

environment but can progress to “gradual out of cell time for both structured therapeutic

and unstructured activities on the unit.” And they may also “participate in social groups

for recreation, programming, and social activities.” By contrast, when offenders progress

to the EPIC unit, “structured social activity increases” further and, for example, “offenders

may attend religious services.” In short, the two sub-programs are designed to provide

treatment by which the inmate can graduate to greater integration into the prison

population.

Beginning in November 2019, Cartagena was assigned to the SDT Program at River

North because he was determined to be seriously mentally ill and unable to live in the

prison population without engaging in assaultive, disruptive, or unmanageable behavior.

During his 18-month stay at River North, Cartagena filed numerous grievances, including

complaints about the restrictions on his conditions of confinement and the mental anguish

he was suffering, ultimately leading to his attempts to commit suicide. After a short stop

at a higher security facility, Cartagena was transferred to Marion Correctional Treatment

Center for intensive mental health treatment. After his transfer to Marion, Cartagena

commenced this action pro se against VDOC officials, complaining about the conditions

of his confinement at River North.

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In his amended complaint, Cartagena alleged that since the age of 12, he had “been

on psychotropic medicines for his serious mental disabilities,” including borderline

personality disorder, anti-social personality disorder, schizo-affective disorder,

schizophrenia, and bipolar disorder Type II. As such, he stated, “he suffers from serious

mental illnesses,” and the defendants were so aware, having placed him “involuntarily” in

the SDT Program without a judicial order. He alleged that he was unlawfully detained in

the Program for 18 months, beginning November 22, 2019, and that the Program was “one

of the most restrictive units within the [VDOC] which was extremely deleterious to [his]

health and safety.” As he stated, “Being isolated for a long period of (18) months and (5)

days exact was very insalubrious to [his] mental health and safety.” As he detailed the

conditions,

In this program offenders are never unrestrained, unless offenders are within their cells. Anytime offenders come out [of] their cells, they are fully strip[] searched and then placed in handcuffs with a dog leash attached to them and also placed in shackles, then escorted by (2) officers at all times. Anytime offenders come out [of] their cells for programming, which is within the designated area in the pod, offenders are then handcuffed and shackled to tables called (S)ecured Chairs. Whenever offenders have outside recreation, offenders are caged in segregation recreation cages. If offenders are sent to medical, the offender is handcuffed and shackled, with a dog leash attached to the handcuffs, then to be escorted by (2) officers under segregation restrictive movement. Offenders within the (S)ecure Diversionary Treatment Program unit cannot be anywhere near other offenders outside the S.D.T.P. unit. Offenders are not allowed to attend religious services, [and] this was before the COVID epidemic even began. Offenders are not even allowed to have a job.

He also alleged in some detail his April 24, 2021 suicide attempt at River North. He

recounted how he first swallowed a toothpaste tube and then electrical wiring to choke

himself. He then began cutting his forearms with a razor. After having second thoughts,

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he called to an officer near his cell, and the officer called a supervisor and a nurse, who

stated that he needed to be taken to the hospital to address the wound to his arm. Once he

arrived at the hospital, however, Cartagena refused medical treatment and he was returned

to River North, where he was placed in five-point restraints. Later that same day, the

toothpaste tube and electrical wiring in his stomach began to cause him immense pain.

When he alerted the nurse on call to the situation, he was again taken to the hospital. This

time, however, he agreed to receive treatment, and the objects were surgically removed

from his stomach.

Finally, Cartagena alleged that after his stay at River North, he was transferred for

three months to Wallens Ridge State Prison, where he was subject to “extreme restrictions”

and where he attempted to commit suicide two more times. Then on August 31, 2021, he

was committed to a medical hospital, Marion Correctional Treatment Center, for “intensive

care for his serious mental health needs.”

To demonstrate his exhaustion of prison procedures, Cartagena attached to his

complaint numerous grievances he had filed with prison officials, complaining about his

conditions of confinement, as well as the officials’ responses. For example, in response to

one of his complaints that the SDT Program was “not designed for the [seriously mentally

ill]” and that prison officials had “failed to take necessary steps to ensure the safety of [his]

mental stability,” an official responded:

The Secure Diversionary Treatment Program is designed with [Seriously Mentally Ill] offenders in mind. Offenders are placed in the Secure Diversionary Treatment Program because they meet the criteria for Serious Mental Illness and they often engage in assaultive, disruptive, and/or unmanageable behaviors. Every effort will be made to manage their

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behaviors within the units. If the offender continues to endanger others due to assaultive or destructive behavior after other interventions have been tried, including use of restraints or placement in an observation room as set forth in Operating Procedure 420.2, the offender may be reclassified to Restrictive Housing according to Operating Procedure 425.4.

In response to another similar grievance, which included a complaint about restrictions on

his religious exercise, the official responded:

Offenders housed in the SCORE unit experience a process of gradual out of cell time for both structured therapeutic and unstructured activities on the unit. As an offender progresses through the program, and from phase to phase, the offender will also experience an increase in social activities. In SCORE, similar to [restrictive housing], offenders experience religious services inside their assigned cell; they may contact the chaplain for religious guidance, study materials, and to participate in seasonal activities. As structured social activity increases into the EPIC unit, offenders may attend religious services.

And in response to yet another complaint about his assignment to the SDT Program, the

official responded:

The process of being assigned to the Diversionary Treatment Program is a Multi-Institutional Treatment Team decision. Once criteria for [Serious Mental Illness] are met, the offender is further reviewed to determine the appropriate SDTP program of housing and treatment to best meet the offender’s needs. You have been assigned to the program because you meet the criteria and are a Seriously Mentally Ill (SMI) offender.

(Emphasis added).

In one lengthy grievance, Cartagena complained that to “be free from isolation in

SCORE Unit” of the SDTP, he “was forced to complete programming” and had to “comply

with treatment” against his will. He also pointed out that if inmates “don’t comply with

the treatment recommendations, [they] are forced to remain in total isolation.” A VDOC

official again responded in a manner similar to other responses, and at one point, an official

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told Cartagena that “[y]ou were referred to the SDTP program by the [Multi-Institutional

Treatment Team] due to your inability to function in [the] G[eneral] P[opulation]. You are

free to refuse any and all programming. You do not, however, decide where you are

housed.”

At the conclusion of his complaint, Cartagena requested $80,000 in damages, as

well as an injunction ordering the defendants “to never ever again detain him . . . in the

(S)ecure Diversionary Treatment Program unit ever again.”

The defendants filed a motion to dismiss Cartagena’s complaint for failure to state

plausible claims for relief, pursuant to Federal Rule of Civil Procedure 12(b)(6). And the

district court granted the motion in full.

In disposing of Cartagena’s First Amendment claim, the district court pointed out

that his complaint did not assert “how failure to attend religious services in person put

substantial pressure on him to violate his religion.” The court noted that the SDT Program

did not prevent him from “practicing his religious faith in other ways, such as watching

religious services on television, reading religious texts, and praying in his cell.” Because

the complaint failed to allege the requirements of a First Amendment claim in the prison

context, the court dismissed it, relying on Turner v. Safley,

(1987). In

disposing of Cartagena’s Eighth Amendment claim, the court noted that the complaint did

not allege that VDOC officials had deprived Cartagena of medical or mental health care.

And it concluded further that Cartagena’s allegations did not sufficiently establish that

prison officials “knew the SDTP living conditions themselves would pose a threat to

Cartagena’s health or safety” because “Cartagena’s submissions indicate[d] that the SDTP

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unit [was] designed for inmates like himself, who ha[d] been diagnosed with [a serious

mental illness] and who ha[d] not functioned well in other types of VDOC housing.” Thus,

the court concluded, Cartagena’s allegations were “not sufficient to support a finding that

[the defendants] were deliberately indifferent to Cartagena’s mental health needs or

safety.” In disposing of Cartagena’s Fourteenth Amendment due process claim, the court

concluded that his detention in the SDT Program did not trigger “a liberty interest protected

under the Due Process Clause,” reasoning that the requirements for establishing such a

liberty interest were not satisfied and citing Smith v. Collins,

(4th Cir.

2020). Finally, with respect to Cartagena’s claims under the Americans with Disabilities

Act and the Rehabilitation Act, the court concluded that Cartagena had failed to sufficiently

allege discrimination on account of his disability. As the court noted, he failed to allege

facts “indicating that, due to his disability, the defendants deprived him of benefits for

which he was otherwise qualified.”

Represented by counsel, Cartagena filed this appeal, contending that the district

court erred in dismissing his Eighth and Fourteenth Amendment claims, as well as his two

statutory discrimination claims.

II

Cartagena contends first that he sufficiently pleaded an Eighth Amendment

violation related to his assignment to the SDT Program. He argues that the defendants

obviously knew of his mental illness and the harm that the SDT Program was causing him,

claiming that it amounted to a “solitary confinement condition[].” And he maintains

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further that because the defendants had knowledge of the harm the SDT Program was

causing him, his continued detention for 18 months in the Program amounted to deliberate

indifference to his mental health, in violation of his Eighth Amendment rights.

Yet, even accepting Cartagena’s characterizations about the defendants’ knowledge

of his confinement and the harm that it caused, he nonetheless falls short of plausibly

alleging the culpable mens rea requirement for an Eighth Amendment violation. Indeed,

Cartagena cannot satisfy the mens rea requirement because the VDOC officials

undisputedly offered Cartagena treatment to help him and protect other inmates, but he

refused it. *

* Our good colleague in dissent grounds her main argument in response to our opinion on the asserted absence of any allegation that Cartagena refused to comply with the SDT Program. But respectfully, we believe that the record repeatedly refers to his refusal. In his complaint, Cartagena alleged that the SDT Program was “a li[c]ensed psychiatric unit funded by the Federal Government,” which provides treatment and benefits with a lessening of restrictions if the inmate complies with the Program. He alleged that if inmates “don’t comply with the treatment recommendation, [they] are forced to remain in total isolation.” VDOC officials described the progressive aspect of the Program, and, indeed, Cartagena alleged that from time to time he complied with the Program — albeit against his will — and thus progressed to the EPIC unit, where social activities increased. But his complaint was not directed at the conditions in the EPIC unit. To support his claims, he focused on the restrictive conditions in the SCORE unit, which he described in detail, implying that he had not, at the times he was in the SCORE unit, complied with the treatment entitling him to progress to less restrictive conditions. And Cartagena alleged his noncompliance with treatment explicitly. His Eighth Amendment claims are grounded in the fact that providing him treatment against his will — i.e., despite his refusal to comply — violated his constitutional rights. He alleged that he was “denied the opportunity to not participate in mental health treatment, care, and services.” (Emphasis added). He alleged, “I was placed in S.D.T.P. against my own will. I have the very right to refuse treatment.” (Emphasis added). He alleged, “Anybody who doesn’t comply with treatment are forced to remain in the S.D.T.P. S.C.O.R.E. unit against the[ir] own will.” He alleged, “I have the very right to refuse treatment, but members of (Continued) 11 USCA4 Appeal: 22-7279 Doc: 55 Filed: 05/24/2024 Pg: 12 of 35

The Eighth Amendment prohibits the “inflict[ion]” of “cruel and unusual

punishments.” U.S. Const. amend. VIII. And it is well established that “the conditions

under which [a prisoner] is confined are subject to scrutiny under the Eighth Amendment.”

Helling v. McKinney,

(1993). But such scrutiny “does not mandate

comfortable prisons,” instead permitting conditions that are “restrictive and even harsh.”

Rhodes v. Chapman,

(1981). The right protects against “inhumane

ones” imposed with a sufficiently culpable mens rea. Farmer v. Brennan,

(1994).

The Farmer Court noted that prison officials violate the Eighth Amendment when

two requirements are met. “First, the deprivation alleged must be, objectively, sufficiently

serious,” denying “the minimal civilized measure of life’s necessities.” Farmer,

(cleaned up). Second, because only the unnecessary and wanton infliction of pain

implicates the Eighth Amendment, a prisoner must show that prison officials also had a

“sufficiently culpable state of mind.”

(cleaned up). And in a case challenging prison

the M.I.T.T. have violated my civil rights repeatedly by forcing me to remain in this unit.” (Emphasis added). He alleged, “Dr. Haynes stated . . . that I am free to refuse any and all programming, but if I did just that I would be placed back into the S.C.O.R.E. unit indefinitely. . . . To enforce treatment against my own will is unlawful and unconstitutional.” (Emphasis added). And when he was taken to the hospital, he alleged that he also “refused medical treatment” there. In response to these allegations, prison officials responded, as Cartagena also alleged, “You were referred to the SDTP program by the MITT team due to your inability to function in [general population]. You are free to refuse any and all programming. You do not, however, decide where you are housed.” (Emphasis added). In sum, the essence of Cartagena’s complaint is that it violates the Eighth Amendment to impose consequences on him for his refusal to comply with his prescribed treatment protocol. The inevitable conclusion from such a claim is that he did indeed refuse treatment. 12 USCA4 Appeal: 22-7279 Doc: 55 Filed: 05/24/2024 Pg: 13 of 35

conditions, that state of mind must be at least “deliberate indifference” to the inmate’s

“health or safety.”

(cleaned up); see also Porter v. Clarke,

(4th Cir.

2019); Scinto v. Stansberry,

(4th Cir. 2016).

“Deliberate indifference,” as the Farmer Court explained, is a culpable mens rea

that requires proof that the prison official subjectively “kn[e]w of and disregard[ed] an

excessive risk to inmate health or safety.”

(emphasis added). Thus, to

show that a prison official was deliberately indifferent, the prisoner must show that the

official “consciously disregard[ed] a substantial risk of serious harm,” which the Court

adopted from the definition of criminal recklessness in the Model Penal Code.

(emphasis added) (cleaned up).

Cartagena did not sufficiently plead nor does he persuasively argue that he has

demonstrated the required mens rea, nor could he.

Prison officials knew that Cartagena had a serious mental illness and also that he

was incapable of functioning in the general prison population. As Cartagena alleges, to

address these conditions — both in the interest of the prison population and Cartagena’s

own mental health — a panel of prison officials determined, in their expertise, that

Cartagena’s conditions would best be addressed by assigning him to the SDT Program,

which is a “formalized program” that operates under “structured security” procedures and

provides “programming and treatment services” and “individualized treatment plans.”

Operating Procedure 730.3, at 2 (eff. Mar. 1, 2018). Thus, the Program initially removes

the inmate from the prison population, provides him with treatment, and adopts a plan, the

compliance with which entitles the inmate to increased social interaction with the prison

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population. Indeed, inmates are “allowed to participate in social groups for recreation,

programming, and social activities.” Thus, under this arrangement, Cartagena was given

control over the removal of restrictions and the increase of social activity by complying

with the Program. Yet, as he alleged, he refused to do so, apparently disagreeing with the

program and treatment that, as his complaint recognized, a panel of experienced prison

officials had determined was best suited for him given his condition and the general prison

population. These allegations establish that, rather than being deliberately indifferent to

Cartagena’s condition, the VDOC officials assessed it and addressed it with a program

designed to benefit both him and the prison population.

Moreover, when Cartagena attempted to commit suicide, prison officials reacted

promptly, immediately giving him medical treatment and ultimately transferring him to

Wallens Ridge and then to Marion for intensive mental health care.

At bottom, these allegations show the opposite of “deliberate indifference.” The

SDT Program was a nuanced one with the carrot of treatment and benefits and the stick of

restriction. The defendants responded to Cartagena’s conditions and sought to address them

with treatment while, at the same time, imposing restraint to protect the prison population.

The fact that Cartagena did not agree with the treatment can hardly be attributed to a

criminal recklessness on the part of prison officials. Cartagena’s allegations are not the

stuff of deliberate indifference, as is required to be shown for an Eighth Amendment claim.

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III

Next, Cartagena contends that the district court erred in dismissing his Fourteenth

Amendment claim because, as he argues, VDOC officials, without due process, deprived

him of a liberty interest, in violation of the Fourteenth Amendment. He maintains that

VDOC prison regulations gave rise to an expectation of avoiding placement in “solitary

confinement units” and that the conditions of such confinement were “harsh and atypical

in relation to the ordinary incidents of prison life,” citing Thorpe v. Clarke,

(4th Cir. 2022) and Incumaa v. Stirling,

, 531–32 (4th Cir. 2015),

such that he had a cognizable liberty interest created by state regulation. See Wilkinson v.

Austin,

, 221–24 (2005). He argues that this conclusion is supported by (1) the

magnitude of his isolation, which was similar to that recognized in Thorpe and Incumaa;

(2) the length of his confinement in the SDT Program, which was more than 550 days and

which “could have been indefinite”; and (3) the fact that good-time credits could be

affected if, as he alleged in his complaint, he “failed to cooperate, participate or not

complete S.D.T.P.’s mental health treatment, services, care, [and] assignments.”

Cartagena also claims that his liberty interest was deprived without due process, primarily

without “notice of the case against him and opportunity to meet it,” quoting Mathews v.

Eldridge,

(1976).

The Fourteenth Amendment provides that no state shall “deprive any person of life,

liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. To

establish that a government actor violated this proscription, “a plaintiff must (1) identify a

protected liberty or property interest and (2) demonstrate deprivation of that interest

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without due process of law.” Prieto v. Clarke,

(4th Cir. 2015). 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,

(citations omitted). But because the Supreme Court has already

held that the Constitution itself does not give rise to a liberty interest in avoiding transfer

to a more adverse condition of confinement, see Meachum v. Fano,

(1976), we must look to state law to determine whether it provides a liberty interest in the

context of this case.

To determine whether state law provides such an interest, a two-step analysis is

required, under which the prisoner must “[1] point to [state] law or policy providing him

with an expectation of avoiding the conditions of his confinement and [2] demonstrate that

those conditions are harsh and atypical in relation to the ordinary incidents of prison life.”

Prieto,

. And the “ordinary incidents of prison life” are determined by a

baseline represented by the conditions of the prison population to which the inmate was

originally sentenced. See Incumaa,

.

Finally, in determining whether the conditions of confinement to which the prisoner

was transferred were “harsh and atypical,” we consider three factors: “(1) the magnitude

of confinement restriction; (2) whether the administrative segregation is for an indefinite

period; and (3) whether assignment to administrative segregation had any collateral

consequences on the inmate’s sentence.” Incumaa,

. Any one of these

factors “standing alone might not be sufficient to create a liberty interest,” or alternatively,

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to show a lack of one. Wilkinson,

. Instead, all factors should be considered

“together” when making the determination. Id.; see also Smith,

.

With these requirements in mind, we turn to Cartagena’s allegations. As to the first

factor, relating to the magnitude of confinement restrictions, the conditions he pleaded in

his complaint may weigh in favor of finding them “atypical and harsh.” He alleged that he

was locked down in a cell 21 hours a day, that recreation took place in a cage, and that

contact with the outside world and other inmates was limited. In addition, he alleged that

he was subject to strip searches when he left his cell. While such restrictions fall somewhat

short in magnitude when compared to those described in Wilkinson, Thorpe, and Incumaa

— cases in which a cognizable liberty interest was found — this factor might nonetheless

be satisfied, given that Cartagena has alleged conditions comparable to those described in

those cases.

But the other two factors strongly weigh against finding a liberty interest. As to the

second, Cartagena’s placement in restrictive conditions was not “indefinite.” While he

alleged that he spent 18 months in the SDT Program, he acknowledged that the conditions

of his confinement could be relaxed as time passed and that this was dependent on his own

conduct. In other words, he held the keys to the conditions of his confinement, and had he

complied with the treatment program prescribed for his mental illness, he would have

progressed to less restrictive ones. As he alleged, “In order to be free from isolation in [the

SDT Program], I was forced to complete programming” and “had to comply with treatment

recommendations.” Moreover, the overall term of confinement here was far briefer than

the 20-plus year duration of solitary confinement that we held amounted to “indefiniteness”

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in Thorpe and Incumaa. See Thorpe,

(“prisoners [were] living in long-term

solitary confinement — some as long as 24 years”); Incumaa,

(addressing

“an exceptional 20–year stint in highly restrictive solitary confinement”); see also

Wilkinson, 545 U.S. at 214–15 (“placement . . . [was] for an indefinite period of time,

limited only by an inmate’s sentence”).

And as to the third factor, whether assignment to the SDT Program had collateral

consequences, Cartagena’s own grievances underscore that there were none. He alleged

that collateral consequences could arise only if he failed to comply with his mental health

treatment plan. Therefore, any collateral consequences were firmly within his control. As

his complaint alleged, “[I]f I failed to cooperate, participate or not complete [the SDT

Program’s] mental health treatment . . . I am disciplined via 1 – Institutional Infractions

[and] 2 – penalized and suspended of good time earnings.”

At bottom, we conclude that Cartagena failed adequately to allege a cognizable

liberty interest in his placement in the SDT Program. And because he failed to plead a

liberty interest, the Due Process Clause requires no process related to his placement in the

Program. Accordingly, we affirm the district court’s dismissal of his Fourteenth

Amendment claim.

IV

Finally, Cartagena contends that VDOC officials discriminated against him because

of his mental illness by assigning him to the SDT Program, thereby denying him the

benefits of being housed in the general prison population, including, as he argues in his

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brief, participation in the prison work program, in violation of the Americans with

Disabilities Act (ADA),

et seq., and the Rehabilitation Act (RA),

et seq. He argues that his mental illness would not disqualify him from

housing “in a less restrictive setting,” so long as he was given a reasonable accommodation,

“such as assistance with medication compliance.” He contends also that, because of his

disability, he was denied the “opportunities to interact with his non-disabled peers,

participate [in] congregate religious programming” and take part in “other meaningful

activities.” He contends therefore that the district court erred in dismissing his

discrimination claims.

To seek recovery for violation of either the ADA or the RA, a plaintiff “must allege

that (1) she has a disability, (2) she is otherwise qualified to receive the benefits of a public

service, program, or activity, and (3) she was excluded from participation in or denied the

benefits of such service, program, or activity, or otherwise discriminated against, on the

basis of her disability.” Constantine v. Rectors & Visitors of George Mason Univ.,

(4th Cir. 2005); see also

;

(a). And “a

plaintiff is ‘qualified’ if she is ‘an individual with a disability who, with or without

reasonable modifications to rules, policies, or practices, . . . meets the essential eligibility

requirements for the receipt of services or the participation in programs or activities

provided by a public entity.’” Constantine,

(quoting

(2)); see also Se. Cmty. Coll. v. Davis,

(1979) (“[Under the

Rehabilitation Act] [a]n otherwise qualified person is one who is able to meet all of the

program’s requirements in spite of his handicap”).

19 USCA4 Appeal: 22-7279 Doc: 55 Filed: 05/24/2024 Pg: 20 of 35

Cartagena’s argument that he was so qualified fails to take account of the facts

contained in his complaint, in which he acknowledged that he was assigned to the SDT

Program not only because of his serious mental illness but also because he was determined

to be “assaultive, disruptive, and/or unmanageable.” He was told repeatedly, as noted in

his complaint, that one reason that he was referred to the Program was “due to [his] inability

to function in [the] G[eneral] P[opulation]” and “because [he] [met] the criteria” of the

SDT Program. Indeed, VDOC procedures did not permit transfer to the SDT Program

unless the inmate both was “classified as Seriously Mentally Ill” and “frequently engage[d]

in assaultive, disruptive, and/or unmanageable behaviors.” Operating Procedure 730.3, at

2, 7 (eff. Mar. 1, 2018). In short, Cartagena’s complaint demonstrates that he was not

“qualified” to remain in the general prison population. See Doe v. Univ. of Md. Med. Sys.

Corp.,

(4th Cir. 1995) (“[A]n individual is not otherwise qualified if

he poses a significant risk to the health or safety of others by virtue of the disability that

cannot be eliminated by reasonable accommodation”); see also Palmer v. Cir. Ct. of Cook

Cnty., Ill.,

(7th Cir. 1997) (finding that, because the ADA “protects only

‘qualified’ employees . . . and threatening other employees disqualifies one,” the employer

did not violate the ADA when it fired an employee who “threatened to kill another

employee” as the result of “her mental illness”). For this reason alone, Cartagena failed

plausibly to allege that he was “otherwise qualified” for the benefits that he seeks and

therefore to state a claim for discrimination. See Doe,

.

Cartagena relies on Fauconier v. Clarke,

(4th Cir. 2020), to argue

otherwise, but such reliance is misplaced. In Fauconier, we held that an inmate had

20 USCA4 Appeal: 22-7279 Doc: 55 Filed: 05/24/2024 Pg: 21 of 35

adequately pleaded that he was “otherwise qualified to participate in [a] prison work

program” where the complaint included allegations that he had “worked at numerous jobs

. . . and did them well,” that after “prior hospitalizations, he had always been allowed to

return to his then-current job, which he performed competently,” and that he “remained

well able to perform the job that he had been performing” after the hospitalization at issue

that had resulted in his termination from the prison work program.

. In

short, the facts there established that the plaintiff was qualified for the prison work

program.

The complaint here, however, alleges the exact opposite — that Cartagena

was not qualified for the general population because he was unable to function in it.

Quite apart from these shortfalls in Cartagena’s complaint, it must also be noted that

Cartagena refused the reasonable accommodation — treatment of his mental illness — that

would have expedited his return to the general prison population. This also undoubtedly

precludes his present claims. Neither the ADA nor the RA supports a claim for

discrimination when the plaintiff rebukes the very accommodations tailored to move him

out of the restrictive housing of which he complains.

Accordingly, we affirm the district court’s dismissal of Cartagena’s discrimination

claims.

* * *

The judgment of the district court is therefore

AFFIRMED.

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THACKER, Circuit Judge, dissenting:

The majority concludes that Angel Cartagena’s pro se complaint fails to state a

claim. But in my view, the majority misreads and fails to liberally construe the Amended

Complaint, and it misapplies the pleading standard. Because I would hold that Cartagena

has sufficiently stated a claim at this stage, I dissent.

I.

At the times relevant to this appeal, Cartagena was housed at the VDOC’s River

North Correctional Center (“River North”) in the Secure Diversionary Treatment Program

(“SDTP”). As the majority explains, the SDTP is intended to serve as a treatment program

in a “secure setting” for seriously mentally ill offenders who “frequently engage in

assaultive, disruptive, and/or unmanageable behaviors.” VDOC Operating Procedure

730.3, at 7 (eff. Mar. 1, 2018).

Cartagena alleges in his Amended Complaint that he is seriously mentally ill -- he

has numerous diagnoses including schizophrenia, bipolar II disorder, borderline

personality disorder, and schizoaffective disorder. And Cartagena alleges the VDOC was

aware of his conditions and appropriately classified him as a seriously mentally ill offender.

In addition to its treatment protocols, Cartagena’s Amended Complaint alleges that

the SDTP is highly restrictive, imposing conditions akin to solitary confinement.

Specifically, Cartagena alleges he was subject to the restrictions listed below during his

time in the SDTP.

• He was locked in his cell alone for at least 21 hours per day. • He had to undergo a full strip search any time he exited his cell.

22 USCA4 Appeal: 22-7279 Doc: 55 Filed: 05/24/2024 Pg: 23 of 35

• If he was out of his cell, he was placed in handcuffs “with a dog leash attached to them,” shackled, and escorted by two officers. J.A. 66. 1 • When provided, outdoor recreation was in “segregation recreation cages.” J.A. 66–67. • For any provided out of cell programming, he was shackled to a secure chair. • He was limited to four phone calls per month. • He was not allowed to own personal property. • He was prohibited from attending religious services. • He was not allowed to have a job. • He was not permitted to be “anywhere near other offenders outside the SDTP.” J.A. 67. • Failure to participate in programming in the SDTP would result in sanctions such as infractions, loss or suspension of good time credits, being held in “segregation” within the SDTP, and being denied privileges offered to others. J.A. 81.

Cartagena alleges that he was held in these conditions for just over 18 months.

While in the SDTP, Cartagena filed multiple informal complaints and regular

grievances informing staff 2 at River North that he was suffering “severely from emotional

distress” as a result of the restrictions in the SDTP and asking to be moved to a less

restrictive unit. J.A. 56; see also J.A. 29, 41, 46–47, 49–50. River North often responded

that Cartagena’s grievances were untimely because they were filed more than 30 days after

his transfer to the SDTP. See J.A. 31, 34, 37, 42, 48, 58. At other times, when Cartagena

included complaints to Appellee Lovell, VODC’s director of the SDTP, River North

responded by checking the box indicating this “[d]oes not affect you personally,” and

writing that “Issue[s] with [Lovell] cannot be addressed by [River North].” J.A. 51, 58.

1 Citations to the J.A. refer to the Joint Appendix filed by the parties in this appeal. 2 Cartagena’s various grievances were directed to the Multi-Institutional Treatment Team (“MITT”), which was responsible for recommending assignments to the SDT Program; Appellee Dowell; Appellee Haynes; and Appellee Lovell. Appellee Kilbourne, a member of the MITT, responded to some of the grievances.

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When River North did respond substantively, it indicated that “The [SDTP] is designed

with [seriously mentally ill] offenders in mind. Offenders are placed in the [SDTP] because

they meet the criteria for Serious Mental Illness and they often engage in assaultive,

disruptive, and/or unmanageable behaviors.” J.A. 29. Other responses included the

following: “Offenders are placed in the [SDTP] because they meet the criteria for Serious

Mental Illness,” J.A. 35; “These bed assignments are designated for offenders who have

been classified as [Seriously Mentally Ill],” J.A. 40; and “You have been assigned to the

program because you meet the criteria and are a Seriously Mentally Ill (SMI) offender,”

J.A. 49.

Though the Amended Complaint does acknowledge that the SDTP is intended to be

a treatment program, Cartagena claims that he was held in the program against his will and

without due process. And contrary to the majority’s assertion, Cartagena’s Amended

Complaint does not concede that Cartagena “refused to comply with the treatment regimen

prescribed for him.” Supra, at 3. Rather, the Amended Complaint alleges that Cartagena

was “placed involuntarily” and “detained unlawfully against his will” in the SDTP, and that

he was “denied the opportunity to not participate in mental health treatment, care, and

services.” J.A. 64 (emphasis supplied). Moreover, in the grievances Cartagena attached

to the Amended Complaint, he wrote that he “was forced against [his] will to comply

because if [he] didn’t [he] would be forced to remain under isolation in the [SDTP]

indefinitely.” J.A. 30; see also J.A. 35 (“I was forcibly placed in the [SDTP and] . . . forced

to comply with ‘(treatment)’ against my own will.”); J.A. 36 (same); J.A. 39 (“In order to

be free from isolation . . . I was forced to complete programming.”).

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As the majority explained, Cartagena was held in the SDTP until he attempted

suicide and was ultimately committed to a medical correctional treatment center.

II.

We review the grant of a motion to dismiss for failure to state a claim de novo.

Benjamin v. Sparks,

(4th Cir. 2021). Importantly, at this stage of the

litigation, we “assum[e] as true the complaint’s factual allegations and we construe all

reasonable inferences in favor of [Cartagena].” Carlton & Harris Chiropractic, Inc. v.

PDR Network, LLC,

(4th Cir. 2023) (internal quotation marks omitted).

Because Cartagena’s Amended Complaint is pro se, it must be liberally construed.

“[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards

than formal pleadings drafted by lawyers . . . .” Erickson v. Pardus,

(2007)

(quoting Estelle v. Gamble,

(1976)). Further, “liberal construction of

pleadings is particularly appropriate where, as here, there is a Pro se complaint raising civil

rights issues.” Loe v. Armistead,

(4th Cir. 1978) (citing Haines v.

Kerner,

(1972)).

III.

In my view, the majority misreads the Amended Complaint and fails to properly

apply the liberal pleading standard in concluding that Cartagena failed to state a claim.

A.

As to Cartagena’s Eighth Amendment claim, the majority reaches the radical

conclusion that Cartagena “cannot satisfy the mens rea requirement because the VDOC

officials undisputedly offered Cartagena treatment to help him and protect other inmates,

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but he refused it.” Supra, at 11. In other words, the majority rests its holding on the false

premise that Cartagena refused to comply with treatment in the SDTP. Then, with that

faulty premise in hand, the majority posits that because prison officials placed Cartagena

in a treatment program that provided a means by which Cartagena could progress to fewer

restrictions, Appellees could not have been deliberately indifferent to any risk of harm --

even when Cartagena told them multiple times that the conditions were, in fact, creating

such a risk. This view is unsupported in both fact and law. I am concerned not only about

the present case, but also that the path the majority takes could limit the availability of

Eighth Amendment conditions of confinement claims in the future.

First, the majority’s proposition that Cartagena was offered treatment but “refused

it” is belied by the record. As explained above, Cartagena’s Amended Complaint does not

concede that he failed to comply with treatment. Quite the opposite. Cartagena did not

refuse or fail to comply with treatment. He complied, albeit against his will. Cartagena

wrote that he was “denied the opportunity to not participate in mental health treatment,

care, and services,” J.A. 64 (emphasis supplied), and Cartagena stated multiple times in his

grievances that he “was forced against [his] will to comply [with treatment] because if [he]

didn’t [he] would be forced to remain under isolation in the [SDTP] indefinitely,” J.A. 30.

Thus, the Amended Complaint provides no support for the majority’s determination that

Cartagena refused treatment. And, even if the Amended Complaint was ambiguous on this

question, the liberal construction afforded to pro se pleadings and the typical pleading

standard which requires us to draw all inferences in Cartagena’s favor would both require

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that we conclude, at this stage, that Cartagena did comply with treatment protocols in the

SDTP. I am troubled by the majority’s conclusion otherwise.

Second, and even more troubling, is the majority’s holding that Appellees could not

have been deliberately indifferent in the circumstances presented here. “To prove

deliberate indifference, plaintiffs must show that ‘the official kn[ew] of and disregard[ed]

an excessive risk to inmate health or safety.’” Scinto v. Scarberry,

(4th

Cir. 2016) (quoting Farmer v. Brennan,

(1994)). A plaintiff may satisfy

this standard through evidence of actual knowledge or by “prov[ing] by circumstantial

evidence that a risk was so obvious that it had to have been known.” Makdessi v. Fields,

(4th Cir. 2015). “Put differently, ‘[a]n obvious risk of harm justifies an

inference that a prison official subjectively disregarded a substantial risk of serious harm

to the inmate.’” Porter v. Clarke,

(4th Cir. 2019) (quoting Schaub v.

VonWald,

(8th Cir. 2011)).

The majority does not dispute that Cartagena filed numerous grievances -- addressed

to Appellees -- that indicated, in no uncertain terms, that the “serious restrictions” in the

SDTP were “putting [him] at high risk of emotional distress and serious mental anguish,”

J.A. 46; were “extremely deleterious to [his] well being,” J.A. 49; and were causing “severe

mental anguish and emotional distress,” J.A. 41, 47.

The majority similarly does not dispute Cartagena’s argument that the risk of harm

created by placing a seriously mentally ill offender in solitary confinement-like conditions

is sufficiently obvious. Nor could it. As we explained in Porter, “the extensive scholarly

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

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confinement that has emerged in recent years provides circumstantial evidence that the risk

of such harm ‘was so obvious that it had to have been known.’” Porter,

(quoting Makdessi,

). Therefore, we noted that “the district court correctly

pointed out, ‘[g]iven [State D]efendants’ status as corrections professionals, it would defy

logic to suggest that they were unaware of the potential harm that the lack of human

interaction on death row could cause.’” Porter,

(alterations in original).

And in Thorpe, we explained that “[a]s far back as 1890, the Supreme Court recognized

that prisoners subjected to such confinement exhibited a ‘semi-fatuous condition’ and

‘violent insanity’ and even died by suicide.” Thorpe v. Clarke,

(4th Cir.

2022). Indeed, we explained that “[m]ore recently, the Court reiterated the severe risks of

contemporary solitary-confinement regimes that deprive prisoners of almost all human

contact. And [we have] observed that prolonged solitary confinement exacts a heavy

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

resocialized.”

(internal quotation marks and citations omitted). Thus, even without

Cartagena’s evidence of Appellee’s actual knowledge of the risks he faced, our precedent

makes clear that the risk of harm when seriously mentally ill offenders are placed in solitary

confinement-like conditions is sufficiently obvious.

Nor does the majority dispute that Cartagena sufficiently alleges in his Amended

Complaint that Appellees did nothing to change those conditions or mitigate the risks,

despite receiving his grievances. Instead, the majority holds -- without a single citation or

reference to any case -- that Appellees could not have been deliberately indifferent to the

risk of harm posed by Cartagena’s conditions of confinement because Cartagena “was

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given control over the removal of restrictions and the increase of social activity by

complying with the Program.” Supra, at 14.

In other words, the majority is of the view that when prison policy provides that an

inmate is able to move out of a restrictive housing unit if the inmate complies with the

program, that inmate can never state a claim that prison officials were deliberately

indifferent to the risks created by the restrictive conditions. That cannot be right.

Excluding inmates who are specifically sentenced to death row or super max facilities,

inmates who are placed in administrative or disciplinary restrictive housing always have a

way out. That is how it works. As the majority recognized, the program here was intended

to provide “the carrot of treatment and benefits and the stick of restriction.” Supra, at 13.

When the inmate complies, the inmate, in theory, gains more privileges. Thus, in most

cases, an inmate will have some degree of “control over the removal of restrictions and the

increase of social activity by complying with the Program.” Supra, at 14.

But that cannot be outcome determinative. The Eighth Amendment does not allow

prison officials to hold inmates in inhumane conditions or conditions that place the inmate

at a sufficiently serious risk of harm. That restriction on state action is not, and cannot be,

contingent upon whether the inmate complies with the program. Notably, the majority cites

no case that stands for such a proposition.

What is more, Cartagena alleges here that his conditions of confinement did not

change despite his forced compliance, and despite prison policies that suggest he should

have gained more privileges through compliance. The majority’s holding today that

Cartagena cannot state a claim even on the facts alleged will mean that prison officials can

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always avoid liability for violations of the Eighth Amendment, so long as their policies

establish a method by which an inmate could be released from unconstitutional restrictions,

regardless of whether the policies are followed.

Because the majority’s holding is not supported by law or fact, and sets a dangerous

precedent, I am compelled to dissent. I would hold that Cartagena has stated a claim that

Appellees violated his Eighth Amendment rights.

B.

Next, the majority concludes that Cartagena failed to state a claim that Appellees

violated his Fourteenth Amendment right to due process. “Our analysis of due process

entails a two-part inquiry . . . . We first determine whether [Cartagena] had a protectable

liberty interest in avoiding security detention.” Thorpe,

. “We then evaluate

whether [Appellees] failed to afford minimally adequate process to protect that liberty

interest.”

“[T]o demonstrate a liberty interest meriting procedural due process

protection, a prisoner must show (1) denial of ‘an interest that can arise either from the

Constitution itself or from state laws or policies,’ and that (2) ‘this denial imposed on him

an ‘atypical and significant hardship . . . in relation to the ordinary incidents of prison

life.’” Prieto v. Clark,

, (4th Cir. 2015) (quoting Lovelace v. Lee,

(4th Cir. 2006)); see also Incumaa v. Stirling,

(4th Cir. 2015);

Thorpe,

.

The majority focuses its analysis on the second step. To determine whether the

alleged conditions of confinement imposed an “atypical and significant hardship” on the

inmate in relation to the ordinary incidents of prison life, here general population, we

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consider “(1) the magnitude of confinement restrictions; (2) whether the administrative

segregation is for an indefinite period; and (3) whether assignment to administrative

segregation had any collateral consequences on the inmate’s sentence.” Incumaa,

(citing Wilkinson v. Austin,

(2005)). Any one of these factors “standing

alone might not be sufficient to create a liberty interest,” or alternatively, to show a lack of

one. Wilkinson,

. Nevertheless, our precedent confirms that the first factor

-- the magnitude of confinement restrictions -- typically carries the most weight, and an

inmate need not demonstrate a collateral consequence to demonstrate a cognizable liberty

interest. See Incumaa,

(recognizing liberty interest despite any allegation

of collateral consequence).

I agree with the majority that the first factor weighs in Cartagena’s favor. I similarly

agree with the majority that the second and third factors do not weigh in Cartagena’s favor.

Nonetheless, I part from the majority as to how I weigh each of the factors.

Specifically, I would weigh the first factor more heavily than does the majority. The

conditions Cartagena alleges he was subjected to are at least as harsh as the conditions we

found to be sufficient in Incumaa and Thorpe. Particularly troublesome are Cartagena’s

allegations that he was confined to his cell for at least 21 hours per day, subjected to a strip

search each time he left his cell, and was extremely restricted in his communication with

anyone outside the SDTP. As to the second factor, whether the confinement was for an

indefinite period, I would conclude that the factor only slightly, as opposed to strongly,

weighs against Cartagena. To be sure, Cartagena’s 18 month confinement in the SDTP is

shorter in duration than the time periods at issue in our prior cases. But, liberally construing

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Cartagena’s Amended Complaint and the attached documents, Cartagena fairly alleges that

he could have been held in the SDTP indefinitely if he failed to comply. See J.A. 30 (“I

was forced against my will to comply because if I didn’t I would be forced to remain under

isolation in the [SDTP] indefinitely.”). And, despite his alleged compliance, Cartagena’s

Amended Complaint alleges he was not given more privileges or removed from the SDTP

until after his suicide attempt -- after it was almost too late.

Finally, as to the third factor, I agree with the majority that Cartagena did not allege

any collateral consequences to his confinement in the SDTP. As the majority notes, any

“collateral consequences could arise only if [Cartagena] failed to comply with his mental

health treatment plan.” Supra, at 18 (emphasis in original). Because Cartagena did

comply, his Amended Complaint fails to allege any collateral consequences.

Considering all of the factors together, I would conclude that Cartagena has

sufficiently alleged, at this stage, that the conditions to which he was subject were

sufficiently harsh and atypical to state a claim.

I would also conclude that Cartagena has sufficiently pled that prison policies

established a liberty interest in a due process hearing before confining him to the SDTP.

Cartagena’s Amended Complaint alleges that VDOC operating procedure 830 applies to

SDTP, and that placement is decided by the MITT. In their response brief, Appellees

concede that that the first step in placing an inmate in the SDTP is “an Institutional

Classification Authority Hearing,” which “must be a formal due process hearing, which

requires a prior formal notification to the inmate indicating the reason for, purpose of, and

possible results of the classification hearing, the inmate’s right to be present at the hearing,

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and notice of the results . . . and the reason for the decision.” Appellee’s Response Br. at

6 (quoting VDOC, Operating Procedure 830.1 (2021)).

And I would conclude that Cartagena sufficiently alleged that Appellees “failed to

afford minimally adequate process to protect that liberty interest.” Thorpe,

.

As we have explained, “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.’”

at 944–45 (quoting Mathews v. Eldridge,

(1976)). Here, Cartagena alleges he was placed in the SDTP without Appellees providing

him (1) “a judicial due process hearing for involuntary commitment after not giving

voluntary consent”; (2) “the notice or right to appeal the detention”; (3) the right to attend,

make testimony, defend, or provide witnesses against detention”; or (4) “the opportunity

to not participate.” J.A. 80–81. In other words, he alleges he was not provided minimally

adequate process.

C.

Finally, the majority concludes that Cartagena fails to state a claim that VDOC

officials discriminated against him because of his mental illness by assigning him to the

SDTP, in violation of the ADA,

et seq., and the RA,

et

seq. Though I agree that Cartagena failed to state an RA violation, I would conclude that

he has sufficiently alleged a violation of the ADA at this stage. While the two claims are

often considered together, as detailed below, their standards differ.

To state a claim pursuant to the ADA or RA, a plaintiff must allege that he (1) has a

disability; (2) is otherwise qualified to receive the benefits of a public service, program, or

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activity; and (3) was denied the benefits of the service, program, or activity, or was

otherwise discriminated against on the basis of his disability. Nat’l Fed. of the Blind v.

Lamone,

, 502–03 (4th Cir. 2016). Appellees do not dispute that Cartagena

has a disability or that his placement in the SDTP excluded him from general population

and any attendant benefits. But Appellees argue that Cartagena was not “otherwise

qualified” for general population, and that he was not removed from general population

“by reason of” his disability.

As to the second element, “[a] plaintiff is [otherwise] ‘qualified’ if []he is ‘an

individual with a disability who, with or without reasonable modifications to rules, policies,

or practices, . . . meets the essential eligibility requirements for the receipt of services or

the participation in programs or activities provided by a public entity.’” Constantine v.

Rectors & Visitors of George Mason Univ.,

(4th Cir. 2005) (quoting

(2)). Cartagena argues on appeal that he sufficiently alleges that he was

“otherwise qualified” for a unit less restrictive than the SDTP because he alleges that he

was not sentenced to a specialized unit or otherwise restrictive setting and that his “treating

professionals recommended treatment in a less restrictive setting,” J.A. 75.

But the majority concludes that Cartagena cannot state a claim because he was not

otherwise qualified for assignment to the general population because he often engaged in

“assaultive, disruptive, and/or unmanageable behaviors.” Supra, at 20. While that may be

true, Cartagena’s Amended Complaint alleges that Appellees violated the ADA and RA “by

subjecting him to unnecessary isolation when treating professionals recommended

treatment in a less restrictive setting” than the SDTP. J.A. 75. Thus, liberally construing

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Cartagena’s Amended Complaint, I would conclude that he alleges he was otherwise

qualified only for a “less restrictive setting” than the SDTP, and that less restrictive setting

need not necessarily be general population.

The third element requires Cartagena to allege that he was removed from general

population “by reason of” his disability. While the ADA and RA are substantially the same,

they do differ slightly, but importantly at this step. We have held that the ADA only requires

that a plaintiff demonstrate his disability “was a motivating factor” in the discrimination.

Baird ex rel. Baird v. Rose,

(4th Cir. 1999). The RA, on the other hand,

requires that the discrimination be “solely by reason of” his disability.

(a).

Cartagena’s Amended Complaint, including the attached exhibits, indicate that

Cartagena was placed in the SDTP because he met the criteria and was a seriously mentally

ill offender. See J.A. 29. Therefore, Cartagena’s RA claim must fail because he does not

allege that his mental illness was the sole reason for his placement in the SDTP. But,

liberally construing the Amended Complaint, I would conclude that this allegation is

sufficient to state an ADA claim because Cartagena’s mental illness was a “motivating

factor” in his placement in the SDTP.

IV.

For all of the foregoing reasons, I would conclude that Cartagena’s Amended

Complaint stated a claim for violations of the Eighth and Fourteenth Amendments, and the

ADA.

35