Lee v. Virginia Department Of Corrections et al, No. 3:2019cv00502 - Document 46 (E.D. Va. 2020)
Court Description: MEMORANDUM OPINION. See Opinion for details. It is so ORDERED. Signed by Senior United States District Judge Robert E. Payne on 4/20/2020. (sbea, )
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Dockets.Justia.com Case 3:19-cv-00502-REP Document 46 Filed 04/21/20 Page 1 of 35 PageID# 536 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Riclunond Division TYQUINE R. LEE, by and through is Guardian, TAKEISHA L. BROWN, Plaintiff, v. Civil Action No. 3:19cv502 VIRGINIA DEPARTMENT OF CORRECTIONS et al., Defendants. MEMORADUM OPINION Plaintiff Tyquine R. Lee ("Lee"} , by and through his legal guardian and mother, Takeisha Brown, brings this action under 42 U.S.C. § 1983. ECF No. 1118-9. 1 This matter is before the Court on DEFENDANT EVERETT MCDUFFIE, M.D.'S MOTION TO TRANSFER (ECF NO. 38} and Defendants' "Transfer Motions") . MOTION TO TRANSFER VENUE (ECF NO. 40) (the For the reasons set forth below, the Transfer Motions will be granted and the case will be transferred to the Western District of Virginia. I. SUMMARY OF THE PERTINENT ALLEGATIONS Lee is a 26-year-old inmate currently incarcerated within the Virginia Department of Corrections. Compl. 1 8. Lee was placed 42 u. s. C. § 1983 affords no substantive rights. It merely provides a procedural vehicle for suing in federal court for violation of federal rights by persons acting under color of state law. See Amato v. City of Richmond, 875 F. Supp. 1124, 1132 (E.D. Va. 1994) (citing Albright v. Oliver, 114 S. Ct. 807, 811 (1994)). 1 Lee v. Virginia Department Of Corrections et al Doc. 46 Case 3:19-cv-00502-REP Document 46 Filed 04/21/20 Page 2 of 35 PageID# 537 in solitary confinement on May 26, 2016 at Red Onion State Prison ( "Red Onion"} and remained in solitary confinement for over 600 days. As a result of his confinement, it is alleged that Lee "experienced a complete mental and physical collapse." Id. Lee asserts that the Defendants "denied him urgently needed heath care" and allowed Lee "to deteriorate until he lost the ability to communicate coherently." ECF No. 45 at 1. Red Onion is located in the Western District of Virginia. On October 21, 2019, the Court directed the parties to "brief their position on the propriety of transferring the present action to the Western Direct of Virginia pursuant to 28 U.S.C. § 140l(a}" in light of the decision in Nicholas Reyes v. Harold Clarke, et. al., Civil Action No. 3:-18cv611. ECF No. 30 at 1-2. On November 11, 2019, the Defendants filed the Transfer Motions. Thereafter, Lee filed a consolidated reply (ECF No. 45). Accordingly, the Transfer Motions are ripe for review. A. Alleged Acts and Omissions of the Defendants and the Defendants' Places of Residence 1. Virginia Department of Corrections The Virginia Department agency responsible executive correctional "provides facilities facilities supervision and their of Corrections for operating within Virginia. and control programs," 2 over which ("VDOC"} and Compl. state issue is the maintaining 1 10. VDOC correctional "regulations, Case 3:19-cv-00502-REP Document 46 Filed 04/21/20 Page 3 of 35 PageID# 538 policies, directives, and operating procedures operation to state correctional facilities." Id. governing the VDOC is required by statute to maintain a clinical treatment program for certain prisoners within its custody. Id. business in Richmond, Virginia. VDOC has its regular place of Id. 2 . Henry J. Ponton Henry J. Ponton ("Ponton") Chief for the Western District. is the VDOC Regional Operations Compl. 111. Ponton has ultimate authority over decisions made by the Dual Treatment Team ("DTT"), "which reviews solitary confinement classifications and mental health assessments to determine appropriate housing." Id. Ponton has also been a member of the External Review Team {"ERT"), which reviews the decisions of the DTT. his individual and official Id. Ponton is being sued in capacity. business is in Roanoke, Virginia. His regular place of Id. 3. Denise Malone Denise Malone ("Malone") Services for the VDOC. responsible for supervisors, is 1 Compl. the 12. Chief of Mental In this role, "also associated Malone is the supervision of all mental health clinical "including the supervisors responsible provisions of mental health services at Red Onion." is Heal th responsible policies for and VDOC mental procedures and health for Id. for Malone treatment the the and appropriate classification of VDOC prisoners based on mental health needs." 3 Case 3:19-cv-00502-REP Document 46 Filed 04/21/20 Page 4 of 35 PageID# 539 Id. Additionally, Malone is a member of the ERT and is responsible for handling programs at grievance appeals, for institutions, VDOC and administering disciplinary actions Id. Professionals. approving for mental health supervising and for Qualified Mental Health Malone is being sued in her individual and official capacity. Id. Richmond, Virginia. Id. Her regular place of business is in 4. Jeffrey Kiser Jeffrey Kiser ("Kiser") is the Warden of Red Onion, where "he has ultimate responsibility over the facility's prisoners' ultimate the including Mr. Lee" and was previously the Assistant Warden of Red Onion. the care and custody of authority to Compl. 113. approve-or As Warden, Kiser has delegate authority to approve-security-level classification of the facility's prisoners. Id. Kiser is sued in his individual and official capacity. Id. His principal place of business is at Red Onion in Pound, Virginia. Id. 5. Earl Barksdale Earl Barksdale Onion. Compl. responsibility prisoners, 1 over ( "Barksdale" ) 14. the including Mr. As is the Warden, care and Facility Unit Head of Red Onion, Barksdale custody Id. Lee." former Warden of Red of "had the Barksdale was ultimate facility's also the in which he had the ultimate authority to approve-or delegate authority to approve-security4 Case 3:19-cv-00502-REP Document 46 Filed 04/21/20 Page 5 of 35 PageID# 540 level classifications of the facility's prisoners. is sued in his individual and official capacity. place of business is Baskerville, Virginia. at Baskerville Id. Id. Barksdale His regular Correctional Center in Id. 6. Arvil Gallihar Arvil Gallihar ( "Gallihar") is the Chief of Housing Programs for Red Onion and has served on the DTT. Compl. 1 Gallihar is sued in his individual and official capacity. and 15. Id. His regular place of business is at Red Onion in Pound, Virginia. Id. 7 . Amee B. Duncan Amee B. Duncan ("Duncan") is the farmer Unit Manager of c- Building at Red Onion, where Lee was housed from January 2017 to January 2018. Compl. 1 16. In this role, Duncan segregation classification decisions made by the reviewed Institutional Classification Authority ("ICA"), "a team of staffers who conduct hearings to review the progress of individual prisoners through the Step-Down Program classification." official capacity. as Id. Id. Onion in Pound, Virginia. well Duncan as is their sued ongoing in her segregation individual and Her regular place of business is at Red Id. 8. Larry Collins Larry R. Collins ("Collins") is a Unit Manager at Red Onion and Facility Unit Head designee. 5 Compl. 1 17. In this role, Case 3:19-cv-00502-REP Document 46 Filed 04/21/20 Page 6 of 35 PageID# 541 Collins reviews segregation decisions made by the ICA. Collins is sued in his individual and official capacity. Id. Id. His regular place of business is at Red Onion in Pound, Virginia. Id. 9. Walter Swiney Walter Swiney {"Swiney") is a Unit Manager at Red Onion and Facility Unit Head designee, "in which role he reviews segregation decisions made by the ICA." Compl. individual and official capacity. 1 18. Swiney is sued in his Id. His regular place of business is at Red Onion in Pound, Virginia. 10. Michael Younce Michael Younce {"Younce") is a Unit Manager at Red Onion and Facility Unit Head Designee. Compl. 1 19. In this role, Younce reviews segregation decisions made by the ICA. Id. sued in his individual and official capacity. Id. place of business is at Red Onion in Pound, Virginia. 11. Younce is His regular Id. Justin W. Kiser Justin W. responsible for classification. Kiser is a reviewing Compl. 1 "former and ICA member recommending" Lee's Justin Kiser 20. individual and official capacity. Id. at is Roy Sykes Roy Sykes {"Sykes") is an ICA member "responsible for reviewing and recommending 6 Onion, segregation sued in his His last known regular place of business is at Red Onion in Pound, Virginia. 12. Red at [Lee's] Id. Red Onion, segregation Case 3:19-cv-00502-REP Document 46 Filed 04/21/20 Page 7 of 35 PageID# 542 classification." 1 Compl. 21. Id. and official capacity. Sykes is sued in his individual His last known regular place of business is at Red Onion in Pound, Virginia. 13. Gary Adams Gary Adams ("Adams") is a former ICA member at Red Onion, "responsible for reviewing and recommending classification." Compl. 1 22. Id. and official capacity. [Lee's] segregation Adams is sued in his individual His last known regular place of business is at Red Onion in Pound, Virginia. 14. Id. Id. James D. Lambert James D. Lambert ("Lambert") is an ICA member at Red Onion, "responsible for reviewing and recommending classification." Compl. and official capacity. 1 His regular place of business is at Red Onion in Pound, Virginia. 15. Id. Terrence Huff Terrence Huff ("Huff") Profession and VDOC employee. is a Compl. individual and official capacity. Qualified 1 Id. Mental Health Huff is sued in his 24. His business is at Red Onion in Pound, Virginia. 16. segregation Lambert is sued in his individual 23. Id. [Lee's] regular place of Id. D. Trent D. Trent ("Trent") is a Qualified Mental Health Professional and VDOC employee. Compl. 1 25. Trent is sued in his individual 7 Case 3:19-cv-00502-REP Document 46 Filed 04/21/20 Page 8 of 35 PageID# 543 and official capacity. Id. Red Onion in Pound, Virginia. 17. Id. Everett McDuffie Everett McDuffie 26. His regular place of business is at ("McDuffie") is a psychiatrist. McDuffie contracts with the VDOC services to prisoners at Red Onion. individual capacity. at Red Onion. Id. Id. Compl. 1 to provide psychiatric McDuffie is sued in his He maintains a regular place of business Id. B. Solitary Confinement and the Step-Down Program When deciding the Transfer Motions, the Court is obligated to as accept, allegations. true, all well-pleaded, non-conclusory factual The Complaint is quite specific and the factual allegations recited herein are accorded the respect called for in analyzing the Motions to Transfer. Red Onion is a supermax prison located in Pound, Virginia. Compl. 1 complete 27. Red Onion is "designed to impose an environment of isolation and control, including the hundreds of its prisoners in solitary confinement." placement of Id. 1. VDOC Policies Regarding Medical Care for Prisoners in Solitary Confinement The Complaint alleges that "Defendants' inaction in the face of [Lee]'s severe mental illness was contrary to VDOC policies." Compl. 1 65. VDOC policy requires the " [a] cti ve screening, monitoring and proactive management of prisoners who are at risk 8 Case 3:19-cv-00502-REP Document 46 Filed 04/21/20 Page 9 of 35 PageID# 544 of deteriorating in solitary confinement." Id. Specifically, VDOC Operating Procedures require that: a. Offenders should be screened by a Qualified Mental Health Professional(QMHP) before their placement or within one working day after placement in special housing so any "at risk" offenders may be identified. VDOC Operating Policy 720.1, § IV.C. b. Institutions "systematically identify, monitor, and manage offenders" who are at risk of deterioration. VDOC Operating Policy 730.5, § IV. C.1. c. QMHP should recommend removal from solitary confinement if "that placement . . . may have a deleterious effect on an offender's mental health." VDOC Operating Policy 730.5, § IV. C.1. d. Offenders with serious mental illnesses must be moved out of solitary confinement within 28 days and placed in one of four housing options designed to provide mental health care. VDOC Operating Procedure 861.3 § IV.B.4. e. Any offender with identified mental health problems who is placed in special housing should be monitored according to specified health service procedures. VDOC Operating Procedure 861.3 § V.C.2. f. No of fender will be denied necessary or proper medical, dental, or mental health care while in special housing. VDOC Operating Procedure 861.3 § V.C.4. g. A QMHP will personally interview any offender remaining in special housing for more than 30 days, and if confinement continues for more than 30 days, any offender with an identified mental health need shall receive an assessment at least once a month, or more frequently if prescribed by the Health Authority. VDOC Operating Procedure 861. 3 § V.C.12. 9 Case 3:19-cv-00502-REP Document 46 Filed 04/21/20 Page 10 of 35 PageID# 545 Id. The Complaint asserts that, screenings and ineffective. evaluations in practice, the mental health at Red Onion are cursory and Id. , 66. 2. The Step-Down Program In 2011, the VDOC implemented a Step-Down Program meant to allow prisoners in solitary confinement "to earn privileges and eventually work their way out of solitary by completing a series of assignments." are two Compl., 76. pathways: Management ( "SM" ) . program, Intensive Id. , such privileges general population." the IM track, population. Id. Id. 78 . Under the Step-Down Program, there Management ("IM") and Special For those in the SM track of the "may eventually include a return However, for prisoners, such as Lee, in there is no possibility of returning to general "Irrespective of the track, prisoners in solitary confinement who wish to earn additional privileges must, other requirements, That series complete." to complete the so-called consists of seven workbooks among 'Challenge Series.' which prisoners must Id. VDOC policy requires "a due process hearing by the Institution Classification Authority (ICA) prior to placement in solitary confinement and reviews by the ICA of the prisoner's status every 90 days." Id. , 77. The role of the ICA is to review the progress of prisoners through the Step-Down Program as well as their-on going segregation classification. A reporting 10 Case 3:19-cv-00502-REP Document 46 Filed 04/21/20 Page 11 of 35 PageID# 546 staff member makes a recommendation as to whether a prisoner should be retained in solitary confinement. The ICA then conducts an internal review of the staff member's recommendation before adopting it. All interim segregation reviews are also reviewed by the Facility Unit Head or his or her designee. Id. ,r 82. In addition to review by the ICA, at least three other administrative bodies have a role in reviewing a prisoner's status. The Building Management Committee, comprised of mental health and correctional staff with direct knowledge of the prisoners in their custody, makes recommendations to the ICA regarding assignment of prisoners to privilege levels. There is also a Dual Treatment Team (DTT), responsible for reviewing solitary confinement classifications and making recommendations as to whether prisoners are properly classified, and a biannual External Review Team (ERT), which reviews the decisions of the DTT. Id. ,r According 83. to Lee, although the VDOC established procedures for reviewing an inmate's solitary confinement status, these reviews, in practice, "are little more than rubber stamps" and do not record a prisoner's progress through the Step-Down Program. Id. ,r 77. Additionally, Lee asserts that the VDOC Step- Down Program "failed to make any accommodations for mentally ill prisoners like Mr. Lee, who became incapable of effectively communicating verbally or in writing when his placement in solitary confinement exacerbated his mental illness. Rather than providing Mr. Lee with a pathway out of solitary confinement, 11 the program Case 3:19-cv-00502-REP Document 46 Filed 04/21/20 Page 12 of 35 PageID# 547 became an obstacle that he could not hope to overcome." ECF No. 45 at 2. C. Conditions of Confinement Specific to Lee In October 2011, robberies. 1 Compl. robberies, Lee was Lee was 47. convicted of a Following initially held his at series of armed sentencing Powhatan for the Reception and Classification Center and later transferred to Sussex I Prison. Id. Red Onion. 1 49. Id. State On September 18, 2015, Lee was transferred to On May 26, 2016, following an e-mail intercepted from Lee that was interpreted as a threat towards a correctional officer at confinement. another Id. 1 facility, Lee was placed in solitary SO. While in solitary confinement Prisoners are supposed to be taken to shower three times a week and allowed one hour of recreation five times a week. During recreation, prisoners are alone in a cage the size of a parking space. A prisoner must submit to a body cavity search before leaving his cell, and during the brief time he is allowed out, he is shackled and escorted by two guards. Besides infrequent medical exams, these interactions with guards are the only time a prisoner is solitary confinement will feel the touch of another human being. Id. 1 30. Lee asserts that, despite these guidelines, during his time in solitary confinement, he almost never left his cell. Further, Lee alleges that: There were periods when the guards only took him to shower once a month, and he spent an 12 Case 3:19-cv-00502-REP Document 46 Filed 04/21/20 Page 13 of 35 PageID# 548 hour in the recreation cage only once every two to three weeks. On occasions when he was allowed a phone call, guards would bring an ear piece to his cell instead of taking him to the phone, and often the ear piece did not work. He did not have any out-of-cell visits with medical personnel; any check-ups were brief encounters through the cell door. The limited human contact that Mr. Lee had was often hostile. Correctional officers responded to Mr. Lee's symptomatic behavior by trying to provoke him with threatening language and subduing him with chemical agents. Correctional officers maced Mr. Lee approximately 25 times during his incarceration in solitary confinement in response to Mr. Lee's complaints the food, the filthiness of his cell, and other intense frustrations of life in solitary confinement. Mr. Lee became fearful of the correctional officers, and during one visit with his Mother, Mr. Lee told her to stop asking questions about his well-being, because it would cause the guards to retaliate. Prison employees delivered Mr. Lee's meals through a slot in the door and ate alone in his cell, like all other prisoners on solitary confinement in Red Onion. The food was often inedible, and sometimes infested with dirt, insects, and maggots. Other times guards neglected to give him anything to eat. During his time in solitary confinement, Mr. Lee weight dropped from 174 to 140 pounds. Id . ,r ,r 3 0 - 33 . Additionally, during his solitary confinement, human interaction inside the prison was reduced to a bare minimum and Lee's constrained. contacts Id. ,r with the outside world were severely 35. D. Lee's Deteriorating Mental Health Lee "has suffered from mental illness since childhood. He was diagnosed with ADHD at the age of five and placed on medication. 13 Case 3:19-cv-00502-REP Document 46 Filed 04/21/20 Page 14 of 35 PageID# 549 Social Security records identify Mr. Lee as 'disabled,' with his disability beginning at the age of eight. From the ages of eight to ten, he was hospitalized four times for behavior associated with his mental illness. " allegedly led activity. Id. to 1 1 Compl. behavior 46. problems, Lee's mental illness including his criminal 47. Within two months of his placement in solitary confinement, Lee began exhibiting psychotic symptoms. 1 Id. 51. Namely, Lee began: speaking in numbers. Whereas previously he showed no difficulty in signing his name, on a July 22, 2016 ICA Hearing Notification Form, Mr. Lee's signature was a nonsensical string of letters. He signed the same type of form in the same manner on November 27, 2017, this time adding below the signature line an incoherent list of numbers and random words. Rather than recognize this writing as a sign of severe mental illness, a Red Onion official simply wrote "Refused to sign" across the top of the signature line. Id. Despite these symptoms, Lee was held in solitary confinement without any mental health treatment from May 2016 to January 2018, Id. for a total of twenty months. psychosis was precipitated confinement at Red Onion." and 1 52. Lee's "descent into dramatically worsened by his Id. The impact of solitary confinement on Lee's mental illness was allegedly made worse by the misconduct of the officers and staff at Red Onion. Id. 1 54. On January 17, 2017, Lee received 14 Case 3:19-cv-00502-REP Document 46 Filed 04/21/20 Page 15 of 35 PageID# 550 a disciplinary infraction for "refusal to submit to a drug test" and was penalized by being unable to have visitors for six months. Id. 1 55. On January 17, 2018, the ICA recommended Lee be transferred to a different facility. Id. 1 An evaluation conducted later 58. in January revealed that Lee's mental health had significantly deteriorated. Id. schizophrenia and "Dr. an recommended placement ( "MCTC" ) . " McDuffie unspecified at Marion diagnosed personality Correctional Lee with disorder, and Treatment Following this recommendation, Id. Mr. Center on January 31, 2018, Lee was transferred to MCTC and underwent an intake interview the following day, in which it was "observed that [Lee] had lost all sense of circumstances. to MCTC." Id. his own identity, his family, or his present He did not understand why he had been transferred 1 60. Evaluations conducted in the following weeks revealed that Lee's mental health had significantly deteriorated. Id. Many of the harms Lee suffered as a result of his solitary confinement, including his "spontaneity of speech" persisted "long after [Lee] transferred out of Red Onion." Id. 1 62. Lee's mental health "eventually began to improve as a result of the treatment he received at [MCTC] . " Id. transferred to Greensville Correctional Center 1 94. Lee was ("Greensville") , where he was in general population and in conditions beneficial to Lee' s mental heal th. " Id. However, 15 following a dispute with Case 3:19-cv-00502-REP Document 46 Filed 04/21/20 Page 16 of 35 PageID# 551 another inmate at Greensville, Lee was transferred to Wallens Ridge State Prison ( "Wal lens continued to decline. Ridge" ) , Id. 1 95. where his mental heal th has The Complaint asserts that: absent the level of medical care necessary to manage his condition, Mr. Lee's mental illness is very likely to lead to behavioral issues. VDOC' s policy and practice, as implemented both at Red Onion and Wallens Ridge, is to respond to behavioral issues by placing prisoners in solitary confinement, even when the behaviors are the result of mental illness. As a result, it is nearly certain that absent prospective relief by this Court, Mr. Lee will be placed in solitary confinement again in the future. Lee cannot be placed in solitary confinement without a substantial risk of a serious deterioration of his mental health. Id. 11 96-98. E. Lee's Claims Lee alleges that the "Defendants systematically failed to meaningfully implement VDOC programs and policies that should have afforded [Lee] periodic reviews of placement in solitary confinement" and that "[t] he harms that [Lee] suffered were greatly exacerbated as a result." Compl. 1 75. Lee raises the following causes of action in his Complaint. 1. Count I: Violation of the Eighth Amendment of the United State Constitution- Conditions of Confinement Lee alleges that Defendants Ponton, Malone, Kiser, Barksdale, Gallihar, Duncan, Collin, Swiney, Younce, Justin Kiser, Sykes, Adams, Lambert, Huff, and Trent, in their individual and official 16 Case 3:19-cv-00502-REP Document 46 Filed 04/21/20 Page 17 of 35 PageID# 552 capacities, and McDuffie, in his individual capacity, deprived him of "the minimal civilized measure of life's necessities, including by holding him for over 600 days in conditions that destroyed his physical and psychological health." Compl. ,r 100. Specifically, Lee asserts that his solitary confinement at Red Onion caused "an ongoing mental health crisis that precipitated his extreme physical and mental deterioration. The harm continued long after his release from Red Onion and may be permanent. Mr. Lee requires ongoing pharmacological intervention in a treatment setting." ,r Id. 101. As to each Defendant, Lee further alleges that each "was individually aware that long-term solitary confinement causes and exacerbates mental illness. Nevertheless, Defendants held Mr. Lee in solitary confinement despite the obvious and consequences to Mr. Lee's mental and physical health." devastating ,r Id. 102. 2. Count II: Violation of the Eighth Amendment of the United States Constitution-Failure to Provide Medical Care The Complaint alleges that, placement symptoms in of treatment. "Almost immediately after his solitary confinement, serious mental Mr. illness Lee that began to display required medical Mr. Lee's condition amounted to a serious medical need that was so obvious that even a lay person would easily recognize the necessity Accordingly, for Lee a doctor's contends that 17 attention." Defendants Compl. Malone, ,r 113. Kiser, Case 3:19-cv-00502-REP Document 46 Filed 04/21/20 Page 18 of 35 PageID# 553 Barksdale, Huff, and Trent, in their individual and official capacities, and McDuffie, in his individual capacity, acted with deliberate indifference to [Lee's] serious medical needs by failing to provide him with any treatment whatsoever for over 600 days, and by failing to take any steps to effectuate his release from solitary confinement, during which time Mr. Lee's physical and mental health completely deteriorated. Id. 1J 114. 3. Count III: Violation of Procedural Due Process Rights Under the Fourteenth Amendment to the U.S. Constitution Lee asserts that he: has a protected liberty interest in avoiding continued prolonged and indefinite solitary confinement. This liberty interest arises from (1) the VDOC regulations mandating periodic review of long-term segregation status, including the Segregation Reduction Step-Down Program and VDOC Operating Procedure 830 .A, and (2) the conditions of Mr. Lee's confinement, which cause atypical and significant hardship in comparison to the general prison population. Compl. Malone, ,r 122. Kiser, Accordingly, Lee alleges that Defendants Ponton, Barksdale, Gallihar, Duncan, Collins, Swiney, Younce, Justin Kiser, Sykes, Adams, and Lamber, in their individual capacities failed to provide meaningful proceedings to determine the continued propriety or necessity of Mr. Lee's solitary confinement. Defendants failed to articulate any legitimate basis to Mr. Lee for why he remained in solitary confinement and failed to provide him a 18 Case 3:19-cv-00502-REP Document 46 Filed 04/21/20 Page 19 of 35 PageID# 554 meaningful opportunity to contest his placement. Instead, Defendants rubberstamped decisions to retain Mr. Lee in solitary confinement via rote repetition without providing a reasoned decision based on Mr. Lee's current level of risk or assessment of his mental health. Far from providing due process, these reviews were no more than a pretext for Mr. Lee's indefinite detention in solitary confinement. Compl. 11 124. 4. Count IV: Violation of the Americans with Disabilities Act Lee states that mitigated through " [h] is serious mental medical treatment, illness, constitutes even when a mental impairment that substantially limits him in several major life activities, including concentrating, thinking, Compl. 1133. others." but not limited communicating, to and learning, reading, interacting with Lee alleges that the VDOC failed to accommodate Mr. Lee's mental disabilities and denied him the benefits and services of their facilities by reason of his mental disability by, among other things, holding Mr. Lee in solitary confinement for over 600 days despite and because of his mental impairment, failing to provide him alternate means to progress out of solitary confinement, and failing to account for his disability in period reviews of his placement in solitary confinement. Id. 1135. s. Count V: Violation of the Rehabilitation Act of 1973 Lee alleges that the VDOC 19 Case 3:19-cv-00502-REP Document 46 Filed 04/21/20 Page 20 of 35 PageID# 555 [v]iolate[d] the Rehabilitation Act by discriminating against Mr. Lee solely on the basis of his disability. VDOC fails to reasonably accommodate Mr. Lee's disability by, among other things, holding Mr. Lee in solitary confinement for over 600 days despite and because of his mental impairment, failing to provide him alternate means to progress out of solitary confinement, and failing to account for his disability in period reviews of his placement in solitary confinement. Compl. 1 141. 6. Count VI: Medical Malpractice Lee states that: The applicable standard of care is Virginia requires, at a minimum, that treating medical professionals avoid significant delay in the onset of treatment for individuals exhibiting psychotic symptoms, because delay increases the likelihood that the individual's baseline functioning will have deteriorated to the point that the possibility of optimal recovery is severely limited. Compl. 1147. Based on this standard, Lee alleges that Defendants Trent, Huffy and McDuffie failed: to provide any medical treatment, medication, referral for further evaluation, or recommendation for a transfer out of solitary confinement for a period of a year and a half, during which time Mr. Lee was exhibiting severe symptoms of mental illness, constitutes grossly negligent and/or wanton and reckless misconduct. Id. 1148. 20 Case 3:19-cv-00502-REP Document 46 Filed 04/21/20 Page 21 of 35 PageID# 556 7. Count VII: Intentional Infliction of Emotional Distress Lee asserts that Defendants Ponton, Malone, Kiser, Barksdale, Gallihar, Duncan, Collins, Swiney, Younce, Justin Kiser, Sykes, Adams, Lambert, Huff, Trent, and McDuffie individually and collectively, in holding Mr. Lee in solitary confinement for over a year and a half was intentional and/or reckless, and constitutes behavior so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society. Compl. ~ 151. II. STANDARD FOR DECIDING THE TRANSFER MOTIONS 28 U. s. c. § 1404 (a), which permits the transfer of civil actions, provides that: For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented. To determine whether a § 1404(a) transfer of venue is appropriate, "a district court must make two inquiries: ( 1) whether the claims might have been brought in the transferee forum, and (2) whether the interest of justice and convenience of the parties and witnesses justify transfer to that forum." Koh v. Microtek Int'l, 2003); see also Inc., 250 F. Supp. 2d 627, 21 630 (E.D. Va. Case 3:19-cv-00502-REP Document 46 Filed 04/21/20 Page 22 of 35 PageID# 557 Seaman v. IAC/InterActiveCorp, Inc., No. 3:18-cv-401, 2019 WL 1474392, *3 (E.D. Va. Apr. 3, 2019). The party seeking transfer of venue bears showing that the transfer is warranted. Cox Commc'ns, Inc., 117 F. However, (citation omitted}. accomplished sua sponte." A.T. Massey Coal Co., (citing Jensen v. 2004)). Supp. the burden of Beam Laser Sys., Inc. v. 2d 515, 518 (E.D. Va. 2000) " [t] he transfer of a case can be Am. Int'l Specialty Lines Ins. co. v. 628 F. Supp. Klayman, 115 F. 2d 674, App' x 685 634, (E.D. Va. 635-36 2009) (4 th Cir. Once a court determines that transfer is possible, the court must "consider and balance" four factors to determine whether transfer is warranted: choice of venue; "(1) {2} the weight accorded to plaintiff's witness convenience and access; (3) convenience of the parties; and (4) the interest of justice." Trs. Of the Plumbers & Pipefitters Nat. Pension Fund v. Plumbing Servs., Inc., 791 F.3d 436, 444 (4 th Cir. 2015) (citations omitted}. Ultimately, "[t]he decision whether to transfer an action pursuant to§ 1404(a) 'is committed to the sound discretion of the district court.'" BHP Int'l Inv. Inc. v. OnLine Exch., Inc., 105 F. Supp. 2d 493, 498 (E. D. Va. 2000} (quoting Verosol B. V. Douglas, Inc., 806 F. Supp. 582, 591 (E.D. Va. 1992)). 22 v. Hunter Case 3:19-cv-00502-REP Document 46 Filed 04/21/20 Page 23 of 35 PageID# 558 A. The Action Could Have Been Brought in the Western District of Virginia The first step of the transfer analysis, which requires that both venue and jurisdiction with respect to each defendant be proper in the putative transferee district, looks to whether the action could have originally been brought in the Western District of Virginia. at *5. Koh, 250 F. Supp. 2d at 630; Hengle, 2018 WL 3016289, Neither party disputes that the case could have been brought in the Western District. B. The Section 1404(a) Factors Weigh in Favor of Transfer In the second step of the§ 1404(a) transfer analysis, a court must weigh the following factors: plaintiff's choice of venue; " ( 1) the weight accorded to (2) witness convenience and access; (3) convenience of the parties; and (4) the interest of justice." Trs. of the Plumbers & Pipefitters Nat. Pension Fund, 791 F. 3d at 444 (citations omitted). On balance and considering these factors, the§ 1404(a) analysis supports transfer to the Western District of Virginia. 1. Lee's Choice of Forum "As a general rule, a plaintiff's 'choice of venue is entitled to substantial appropriate.'" Fund, 791 F. weight in determining whether transfer Trs. of the Plumbers & Pipefitters Nat. 3d at 444 (quoting Bd. of Trs. v. Pension Sullivant Ave. Props., LLC, 508 F. Supp. 2d 473, 477 (E.D. Va. 2007)). 23 is "But, if Case 3:19-cv-00502-REP Document 46 Filed 04/21/20 Page 24 of 35 PageID# 559 the plaintiff's choice of forum is neither the nucleus of operative facts nor the plaintiff's home forum, accorded less weight." Seaman v. the plaintiff's choice is IAC/InterActiveCorp, Inc., No. 3:18-CV-401, 2019 WL 1474392, at *4 {E.D. Va. Apr. 3, 2019) {citing Intranexus, Inc. v. Siemens Med. Sols. Health Servs. Corp., 227 F. Supp. 2d 581, 583 {E.D. Va. 2002)). Lee's home forum is in the Eastern District. venue, For purposes of "a person is a resident only where he is a citizen and domiciled, or where he makes his home; residence does not arise out of a transitory abode or out of a temporary sojourn in a place other than that of residence or domicile." Koh v. Microtek Int'l Inc., 250 F. Supp. 2d 627, 634 {E.D. Va. 2003). For a prisoner, "A rebuttable presumption exists that a prisoner does not acquire a new domicile in the state of his incarceration, but retains the domicile he had prior to his incarceration. 3:10cv326, 2010 WL {citations omitted) . 4735816, at *1 {E.D. Goad v. Gray, No. 11 Va. Nov. Before he was incarcerated, Portsmouth, Virginia with his mother and sister. 15, 2010) Lee lived in ECF No. 45 at 3. Thus, the Eastern District is Lee's home forum and Lee's choice of forum should be given weight. On the other hand, while the Eastern District is Lee's home forum, it is clear that the Western District of Virginia is the "nucleus of operative facts. Complaint bears little Defendants maintain that Lee's 11 relation 24 to the Eastern District of Case 3:19-cv-00502-REP Document 46 Filed 04/21/20 Page 25 of 35 PageID# 560 ECF No. 3 9 at 7 . Virginia. In response, Lee attempts to frame the Complaint not as an attack on "how the [Step-Down] program was applied at Red Onion" but "deficiencies in the itself" as formulated and deployed in the Richmond. 9. But Lee's argument is a failing one. [VDOC' s] policy ECF No. 45 at Similar to the claims in Reyes, Lee's constitutional and statutory claims do not rest only, or even heavily, upon facial challenges to Defendants' policies that may have been formulated in the Eastern District of Virginia. Instead, the nucleus of operative facts for Reyes' claims relies extensively upon the specific misconduct of Defendants and other individuals in the Western District of Virginia. Reyes v. Clarke, No. 3:18cv611, 2019 WL 4195344, at *10 (E.D. Va. Sept. 4, 2019). As the Defendants allegations about point all aspects out, of "the [Lee's] Complaint includes incarceration at Red Onion, including treatment from correctional officers, the food, the lack of human interaction, the lack of sensory and mental stimulation, the lack of out-of-cell programming, and the lack of mental health treatment." Eighth Amendment claims ECF No. 39 at 10. relies on For example, Lee's Defendants Malone, Kiser, Barksdale, Huff, Trent, and McDuffie's allegedly deliberate acts of indifference to Lee's serious mental health needs, actions which occurred entirely within the Western District of Virginia. 11112-119. 25 Compl. Case 3:19-cv-00502-REP Document 46 Filed 04/21/20 Page 26 of 35 PageID# 561 Lee's Eighth Amendment and Fourteenth Amendment claims based on his solitary confinement do not rest upon a facial reading of the VDOC regulations that were approved in Richmond but focus on the conditions of solitary confinement specific to Lee at Red Onion. As the Court previously pointed out, Although supervisory officials in the Eastern District of Virginia ultimately may bear some liability for allegedly inadequate oversight, the nucleus of operative facts for those claims rests squarely in the Western District of Virginia. Reyes, 2019 WL 4195344, at * 11. The allegations within the Complaint are premised on the individual actions of the Defendants, not on the deficiencies in the VDOC policy as a whole. Thus, the nucleus of operative facts that form the basis for Lee's claims is the Western District. Given the pleadings, Lee's choice of forum is entitled to some deference because his home forum is the Eastern District but must be accorded less weight because the material events underlying the Complaint occurred entirely within the Western District of Virginia. 2. Witness Convenience The second factor of the§ 1404(a) analysis focuses on the convenience to the convenience of witnesses considering a witnesses, witnesses transfer, is testifying of at considerable a trial. importance The when especially the convenience of nonparty whose location should be afforded greater weight in 26 Case 3:19-cv-00502-REP Document 46 Filed 04/21/20 Page 27 of 35 PageID# 562 deciding a motion to transfer venue. See Fitzgibbon v. Radak, No. 3:18-cv-247, 2019 WL 470905, at *4 (E.D. Va. Feb. 6, 2019}; Koh, 250 F. Supp. 2d inconvenience witnesses must and otherwise," at 636-37. offer their The party sufficient potential to enable the details testimony, Court to assess evidence and the degree of inconvenience. 636. In other words, cannot be assessed generally, in the asserting witness respecting "by affidavit the or the materiality of Koh, 250 F. Supp. 2d at "the influence of this factor absence of reliable information identifying the witnesses involved and specifically describing their testimony." Baylor Heating (E. D. Va. inconvenient & Bd. of Trs., Sheet Metal Workers Nat'l Fund v. Air Conditioning, Inc., 702 F. Supp. 1253, 1258 1988). for To satisfy witnesses, the burden generally the that party a forum seeking is the transfer must provide particularized information of a witness' potential cumulative, testimony, how that testimony is material and non- or the degree to which it will be inconvenient to access that testimony in the present district. See Koh, 250 F. Supp. 2d at 636. The Defendants, who aim to transfer case to the Western District, represent that they have compiled a list of potential non-party witness to the action, and that the "majority of witnesses work and/or reside in the Western District of Virginia, 27 Case 3:19-cv-00502-REP Document 46 Filed 04/21/20 Page 28 of 35 PageID# 563 which would be a more convenient forum than the Eastern District of Virginia." ECF No. 39 at 11; ECF No. 41 at 4-8. In support of their request to transfer, the Defendants have submitted the affidavit of Defendant Ponton, the Western Regional Operations Chief for generally ECF No. Onion], which is the Western District Initially, 41-2. located in the VDOC. See Ponton notes that, " [Red Pound, of Virginia, is located approximately 368 miles from the federal district courthouse in Richmond, Virginia. It is 59 miles courthouse in Abingdon, Virginia." from Id. 1 the 4. federal district Ponton states that, "[o] f the sixteen named defendants, nine (9) are currently employed by or at [Red Onion]." Id. 1 9. In addition, "the twenty [Red Onion] employees who have been identified as potential witnesses include the ROSP institutional investigator, both institutional hearings officers, the assistant warden, the operations manager, the grievance coordinator, and numerous members medical, administrative, and security staff." Id. of 1 12. further declares, in pertinent part, that If this matter were to proceed to trial, the prolonged absence of the nine named defendants, alone, would be incredibly disruptive to the operation of ROSP, which is a maximum-security level facility that houses approximately 778 inmates. When also considering the absence of the non-party witnesses, the disruption to the operations of ROSP would be magnified. If a significant number of ROSP employees were compelled to be absent from this facility, over a period of 28 the ROSP Posner Case 3:19-cv-00502-REP Document 46 Filed 04/21/20 Page 29 of 35 PageID# 564 several days, in order to testify at a jury trial in Richmond, ROSP would need to take extraordinary steps to ensure the continuing safety and security of this facility. Specifically, the absence of that number of employees would result in the prison being critically understaffed. ROSP would be compelled to either transfer a portion of its current inmate population to other VDOC facilities, and/or bring in correctional officers and employees from other VDOC facilities to help staff the prison. Finally, if any ROSP inmates were identified as potential witnesses in this action, transporting those inmates to Richmond for purposes of trial would also present logistical issues, the severity of which would vary depending upon the number of inmates called to testify. Considering the distance between ROSP and the federal courthouse in Richmond, any testifying inmates would need to be transported to the Richmond area the day before trial, and temporarily placed at a facility that could safely house level "S" inmates. For the reasons discussed in paragraph 16, temporarily transferring level "S" inmates presents logistical difficulties, which would be amplified in the potential absence of enough security officers to escort these inmates to the Richmond area. The transporting officers would be in addition to any ROSP staff members who would be called to testify at trial, and in addition to the number of officers who would need to be left behind to safely staff the prison. Additional logistical concerns include the possible need to house inmate witnesses at multiple separate facilities, depending upon their security levels and any "enemy" declarations in their inmate records. For these reasons, if this case were to proceed to a jury trial, and if that trial were held in Richmond, the resulting staffing shortage at ROSP, caused by the absence of the parties and witnesses, would critically undermine the safety and security of that prison. Similar security concerns would exist 29 Case 3:19-cv-00502-REP Document 46 Filed 04/21/20 Page 30 of 35 PageID# 565 at WRSP, and the provisions of mental health services at MCTC could be gravely impacted. Considering the many logistical difficulties posed by trying a case of this nature over 350 miles away from the prison, a Richmond trial would impose a significant burden on not just the named ROSP defendants, but would also greatly strain any remaining ROSP staff and would deplete overall prison resources. Id. 1113-14, 18, 21 (internal paragraph numbers omitted). Posner also notes that the above problems would not occur if the matter was tried in the Western District of Virginia. That is somewhat of an overstatement but the problems would be considerably less in the Western District of Virginia because: These same logistical concerns would not be present if this case were tried in the federal courthouse in Big Stone Gap, or even in Abingdon. Considering the close proximity of ROSP. WRSP, and MCTC to those courthouses, the prison would be to rotate shifts and allow for the temporary absence of employees who might need to appear in court to testify. Also, ROSP and WRSP are accustomed to transporting inmates back and forth to those courthouses to testify and no relocation or reassignment would be required in order to bring those witnesses to court for the purposes of testifying to the jury. Id. 22. Ponton's affidavit clearly shows great inconvenience to those who would likely be called to testify. not satisfied information the about the requirement testimony 30 to of But, the Defendants have provide witnesses, particularized and how that Case 3:19-cv-00502-REP Document 46 Filed 04/21/20 Page 31 of 35 PageID# 566 testimony is material. 2 However, That failing ordinarily would be fatal. the Complaint is very specific and provides significant information about the identity of key witnesses and the subjects about which they would testify. Under this unique circumstance, the record here is sufficient to allow the assessment required by the applicable law. Therefore, in this case, the Defendants' error is not fatal to the Transfer Motions. Lee's claims arise out of his solitary confinement while at Red Onion. It is likely that Lee, who is currently located within the Western District of Virginia, will need to testify to support these claims. The burden of moving and housing inmates for the duration of any trial falls on the Defendants. McGuire, 512 F.2d 918, 931 (D.C. Cir. 1974) Cf. Starnes v. ("The burdens and dangers involved in transporting a prisoner across long distances are, in our opinion, a significant inconvenience to the Bureau of Prisons and will normally justify transfer."). Further, in order to defend the claims based on Lee's confinement, Defendants, as they point out, will be required to call prison employees from Red Onion and Wallens Ridge to defend against Lee's claims. v. New York, No. 12 CIV. 2350 (PAE), 2013 See Keitt WL 3479526, at *3 (S.D.N.Y. July 10, 2013} (finding that witnesses in a prison abuse Counsel must be familiar with the applicable law and must make sure that their filings comply with it. Failure to do that most often results in the denial of motions of this sort. 2 31 Case 3:19-cv-00502-REP Document 46 Filed 04/21/20 Page 32 of 35 PageID# 567 suit were likely to be located at or facilities where the abuse occurred). near the correctional Given that the claims at hand involve a prolonged period of mistreatment, Defendants will be required to call a significant number of current and former prison employees in order to defend themselves. The reasons stated with respect to witness convenience to maintain this matter in the Eastern District of Virginia do not outweigh the reasons favoring transfer to the Western District. First, the identified witnesses and Defendants who reside in in the Eastern District of Virginia do not object to traveling to the Western District witnesses. ECF No. to accommodate 41-2 1 the other Defendants and Second, while it is clear that 23. Richmond is the more convenient forum for Lee's sister, Lee's sister does not reside in Richmond and the other evidence before the Court strongly establishes that the Western District of Virginia will be the most convenient forum for the vast majority of witnesses. Accordingly, this factor weighs heavily in favor of transfer. 3. Convenience of the Parties The Defendants, as movants, "must show (1) that the original forum is inconvenient for them and (2) that [the non-moving party] will not be substantially inconvenienced by the transfer." Seaman, 2019 WL 1474392, at *6 (citing Fitzgibbon, 2019 WL 470905 at *3; Koh, 250 F. Supp. 2d at 636). 32 Case 3:19-cv-00502-REP Document 46 Filed 04/21/20 Page 33 of 35 PageID# 568 The Defendants have demonstrated that they will be inconvenienced by conducting a trial in the Eastern District of Virginia. Based on the list of potential witnesses the Defendants have proffered, it appears that litigating this case would require significant shifting of VDOC resources at Red Onion to conduct a trial on this matter in the Eastern District of Virginia. 2019 WL 4195344, at *13. Reyes, Other than the longer trip for Lee's sister, Lee will not be inconvenienced by conducting the trial in the Western District of Virginia. Therefore, this factor strongly favors transfer to the Western District of Virginia. 4. The Interest of Justice "The last factor for the Court to consider is 'the interest of justice,' which encompasses public interest factors aimed at 'systemic integrity and fairness."' Seaman, 2019 WL 1474392, at *7 {quoting Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 30 {1988)). Judicial economy and the avoidance of inconsistent judgments are prominent among the principal elements of systemic integrity. See Fitzgibbon, 2019 WL 470905, at *4; U.S. Ship Mgmt., Inc. v. Maersk Line, Ltd., 357 F. Supp. 2d 924, 937-38 (E.D. Va. 2005). Other factors include "the pendency of a related action, the court's familiarity with the applicable law, docket conditions, access to premises that might have to be viewed, the possibility of unfair trial, the ability to join other parties, and the possibility of harassment." Koh, 250 F. Supp. 2d at 639. 33 Case 3:19-cv-00502-REP Document 46 Filed 04/21/20 Page 34 of 35 PageID# 569 Lee asserts that, "While there are other cases pending in the Western District against officials at Red Onion for its solitary confinement practices, necessarily turn circumstances." out in Reyes, on the the resolution specific ECF No. 45 at 11. facts of of those each cases will Plaintiff's However, as the Court pointed both the avoidance of inconsistent judgments and judicial economy favor transferring the action to the Western District of Virginia. In the decades that the undersigned has been sitting in Richmond, this Court has not ever issued a final judgment as to whether the conditions at Red Onion and the Step-Down Program pass constitutional muster. However, the United States District Court for the Western District of Virginia regularly addresses those issues. Thus, the possibility for inconsistent judgments respecting the constitutionality of the conditions at Red Onion and the Step-Down Program will be greatly reduced if this matter is transferred to the Western District of Virginia. Reyes, 2019 WL 4195344, at *14. Therefore, the interest of justice favors transfer to the Western District. Because the majority of the factors to be considered under§ 1404(a) strongly favor transferring the matter to the Western District of Virginia, transfer to that forum is appropriate. III. CONCLUSION For the reasons stated above, DEFENDANT EVERETT MCDUFFIE, M.D.'S MOTION TO TRANSFER (ECF NO. 38) and Defendants' MOTION TO 34 Case 3:19-cv-00502-REP Document 46 Filed 04/21/20 Page 35 of 35 PageID# 570 TRANSFER VENUE (ECF NO. 40) will be granted and this action will be transferred to the Western District of Virginia. 3 It is so ORDERED. /s/ Robert E. Payne Senior United States District Judge Richmond, Virginia Date: A p r i l ~ ' 2020 The judges of that Court will decide which division of the Court should be the appropriate place for assignment. The various motions (ECF Nos. 13, 15, 22, and 35) are best resolved by the transferee court. 3 35
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