Porter v. Clarke (Lawyers Weekly No. 001-076-17, 16 pp.) (Wynn, J.) No. 16-7044, March 24, 2017; USDC at Alexandria, Va. (Brinkema, J.) 4th Cir.
Holding: Although defendant prison officials have substantially changed policies governing conditions of confinement for Virginia death-row inmates challenged in this lawsuit, the officials have repeatedly refused to rule out a return to the challenged policies, and the district court erred in dismissing the action as moot, the 4th Circuit says.
On Aug. 6, 2015, nearly a year after plaintiffs filed their complaint, the warden approved more relaxed interim rules and regulations that allowed plaintiffs (1) 1.5 hours of contact visitation with immediate family members, once a week; (2) 1.5 hours of non-contact visitation with approved visitors on weekends and holidays; (3) a minimum of 1.5 hours of outdoor recreation, five days per week; (4) at least one hour of indoor recreation with up to three other inmates, daily; and (5) a 15-minute shower, daily.
The corrections department built a new outdoor recreation yard for death-row inmates to allow for unrestrained, outdoor group recreation, as well as a multipurpose dayroom to allow death row inmates to engage in indoor group recreation activities and religious services, behavioral programming and employment opportunities. The department spent approximately $2 million planning, designing and constructing the new facilities.
On July 8, 2016, the district court issued a memorandum opinion holding that the improvements voluntarily made by defendants have rendered plaintiffs’ claims moot. The district court found that the defendants declined to explicitly acknowledge that the pre-2015 conditions of confinement were unconstitutional or to offer explicit guarantees that the corrections department would not return to those conditions. The court granted summary judgment to defendants and denied plaintiffs’ summary judgment motion as moot.
There is a well-recognized exception to the mootness doctrine holding that a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.
In the context of conditions of confinement cases, in particular, courts have found that a change that completely and irrevocably eradicates the effects of the condition or policy subject to challenge renders an action moot. By contrast, a defendant fails to establish that the allegedly wrongful behavior will not recur when the defendant retains the authority and capacity to repeat an alleged harm. Courts have been particularly unwilling to find that a defendant has established that such conduct will not recur when the defendant expressly states that, notwithstanding its abandonment of the challenged policy, it could return to the contested policy in the future.
Here, nothing bars the corrections department from reverting to the challenged policies in the future. Operating Procedure 425.A requires that the department review the policy governing plaintiffs’ conditions of confinement annually and rewrite the policy no later than three years after the current policy’s date.
More significantly, defendants have refused to commit to keep the revised policies in place and not revert to the challenged practices. We do not question the department’s penological rationale for refusing to guarantee that it will not revert to the challenged policies if conditions so require. But given that the department (1) retains authority and capacity to return to the challenged policies, (2) refuses to promise not to resume the prior practice, and (3) has suggested circumstances may require re-imposing the challenged policies, defendants cannot meet their formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.
The district court erred in dismissing plaintiffs’ action as moot.