Latson v. Clarke (346 F. Supp. 3d 831, 2018)

James P. Jones, United States District Judge

The plaintiff, Reginald Cornelius Latson, now 26 years old, is a former prison inmate with the Virginia Department of Corrections ("VDOC"). He is alleged to suffer from autism spectrum disorder ("ASD"), post-traumatic stress disorder ("PTSD"), and intellectual disability ("ID"). Latson contends that he was denied proper medical treatment for these conditions and subjected to abuse, lack of due process, and retaliation during his eight months of incarceration at the Marion Correctional Treatment Center ("MCTC"), a VDOC facility, prior to his conditional pardon by the Governor of Virginia in 2015. He asserts claims based on the First, Eighth, and Fourteenth Amendments to the Constitution pursuant to 42 U.S.C. § 1983, as well as under the Americans with Disabilities Act ("ADA") and the Rehabilitation Act ("RA"). The present defendants are VDOC; Harold W. Clarke, Director of VDOC; and Larry Jarvis and Dara Watson (née Robichaux), the former Warden and Assistant Warden, respectively, of MCTC. The ADA and RA claims are brought against VDOC; the § 1983 claims are brought against the individual defendants. Latson seeks both compensatory and punitive damages from the defendants.

After extensive discovery, the defendants jointly filed a Motion for Summary Judgment, which has been briefed by the parties and orally argued and is ripe for decision. The parties have submitted a voluminous summary judgment record relating to Latson's confinement at MCTC, including depositions, affidavits and declarations, experts' evaluations and reports, and various official and unofficial records and correspondence. Together the parties have filed nearly 3,000 pages of briefs and exhibits in support or opposition to the Motion for Summary Judgment. The court has also considered oral argument by counsel, which lasted nearly two and a half hours.

Among other arguments, the defendants contend that Latson's claims under the ADA and the RA are barred by the statute of limitations and that the individual defendants are entitled to qualified immunity. I agree and will grant the Motion for Summary Judgment.

I.

The following facts taken from the summary judgment record are either undisputed or, where disputed, are presented in the light most favorable to the plaintiff as the nonmoving party.

Latson was diagnosed with ASD and ID as a child. As a result of these disabilities, he has poor eye contact and social skills, poor auditory and reading comprehension, and he mumbles and is difficult to understand. He does not like to be touched and has a heightened fight-or-flight response, often becoming physically combative when frustrated. His coping skills and executive functioning are limited. In addition to ASD and ID, Latson has also been diagnosed with co-morbid conditions of depression and anxiety, which often accompany ASD.

As a result of his disabilities, Latson often does not respond well to authority figures and has a history of troubled interactions with law enforcement, which on several occasions have led to criminal convictions and incarceration. He was previously incarcerated at Powhatan Correctional Center ("Powhatan"), a VDOC facility, in 2011 and 2012. Jeena Porterfield oversaw Latson's treatment there. According to Porterfield, Latson's ASD would be obvious within five minutes of talking to him. Powhatan staff were instructed to verbally advise Latson before touching him for any reason and were educated that his lack of eye contact did not indicate that he was lying. While at Powhatan, Latson was offered recreation daily. Latson's mother frequently communicated with Powhatan staff about Latson, advocating on his behalf and often complaining about his treatment. However, according to Porterfield, Latson did not have problems with security staff at Powhatan. Latson was generally satisfied with his time at Powhatan, and at oral argument in this case, his counsel pointed to his treatment there as an example of how MCTC should have handled Latson.

On March 7, 2014, Latson was sentenced in Frederick County, Virginia, Circuit Court for attempting to disarm a law enforcement officer and assaulting a law enforcement officer. On March 20, 2014, he was sentenced in Stafford County, Virginia, Circuit Court for assault on a law enforcement officer. These felony convictions and sentences led to his incarceration, first at Northwestern Regional Adult Detention Center ("NRADC") and then at Rappahannock Regional Jail ("Rappahannock"), where he was transferred on April 21, 2014. Neither NRADC nor Rappahannock is a VDOC facility. Rappahannock is a local jail operated by a local jail authority.

When he arrived at Rappahannock, Latson was immediately placed in segregation. The administrative segregation cell in which Latson was housed at Rappahannock had a mattress on a ledge, a toilet, and a sink. It had no window, only a flap in the door that was generally kept closed. Latson was allowed to keep his toiletries, commissary items, radio, books, and other personal property in his cell at first. Three days after his arrival, however, Latson was moved to a crisis cell, which contained nothing but a hole in the floor to be used as a toilet and a safety mattress. He was not allowed to keep toiletries or any other personal property in that cell.

Latson was moved to the crisis cell because a psychiatrist evaluated him, found him to be suicidal, and directed that he be put on full suicide watch. As he was being placed into the crisis cell and his clothing removed, he was pushed against the wall and told to put his hands on the wall. When his handcuffs were removed, he turned and struck an officer three times in the temple, ear, and face. Another officer used a Taser on Latson and placed him in handcuffs and leg irons. A nurse saw Latson and removed the Taser probes. Latson was then placed in a restraint chair with his arms, legs, and chest strapped to the chair. He was left in the chair for almost nine hours, which is longer than allowed under the applicable policy without authorization from command staff. Latson was criminally charged with assault and pled guilty, and he received an additional six-month sentence. About a week after this incident, Latson was moved from the crisis cell to administrative segregation, where he remained for the duration of his time at Rappahannock.

There is no evidence in the record that defendants Clarke, Jarvis, or Watson learned of this incident at Rappahannock prior to Latson's later transfer to MCTC. At some point, an attorney for Latson, Lisa Greenman, called Director Clarke and told him that conditions at Rappahannock were not good and that Latson was defecating in a hole in the floor of his cell. She asked for Latson to be moved to a VDOC facility because she believed that VDOC could better serve Latson's needs. Neither Clarke nor Greenman can recall the specifics of this conversation or the date on which it occurred. Clarke did not speak to MCTC Warden Jarvis about Latson. He asked Assistant Warden Watson for information about Latson, but he does not recall when he made the request or what prompted it. Greenman had also been contacting Keith Dawkins, a high level VDOC official, regularly with concerns about conditions at Rappahannock, but the timing and content of those conversations is not in the record.

As Director of VDOC, Clarke has discretion about which inmates to bring from regional jails to state facilities. In making that determination, he considers bed availability and date of final sentencing order. By statute, a person sentenced to more than a year of incarceration is to be received into VDOC custody "within sixty days of the date on which the final sentencing order is mailed by certified letter or sent by electronic transmission to the Director by the clerk." Va. Code Ann. § 53.1-20(B). There is a conflict in the evidence as to when VDOC considers an inmate to be "VDOC-responsible" or "state-responsible," although that issue is not of critical importance. Because Latson had been convicted of felonies and sentenced to more than a year of incarceration, Clarke had the power to transfer him from Rappahannock to a VDOC facility, which he ultimately did. Latson spent approximately six weeks at Rappahannock and was transferred to MCTC on June 5, 2014.

Attorney Greenman's advocacy led Clarke to accept Latson into a VDOC facility more quickly than would otherwise have been expected based on standard practice and bed availability. Once he made the decision to transfer Latson to MCTC, Clarke received updates regarding the status of Latson's arrival there.

On June 4, 2014, the day before Latson's arrival at MCTC, VDOC psychologist Eric Madsen wrote in an email to Jarvis, Watson, and others that he had spoken with mental health staff at Rappahannock and a VDOC community psychologist had visited Latson at Rappahannock, and Latson had seemed to be doing well there, contrary to Greenman's accounts. It was Madsen's decision to place Latson at MCTC, a facility that focuses on mental health treatment. He took Latson's disabilities into account in a general way, but he did not specifically consider Latson's ASD and ID. Madsen did not believe special input from an autism expert was required when deciding on Latson's placement. He believed that MCTC was the best facility that VDOC had to offer Latson, and the mental health unit there could serve the needs of an inmate with ASD.

Upon Latson's arrival at MCTC, Christopher Armes, a psychology associate, assessed him as having a high risk of aggression based on his impulsiveness, poor insight, and limited coping skills, as well as his history of assaulting law enforcement and his experiences at Rappahannock. Armes reviewed thousands of pages of documents regarding Latson in preparation for Latson's transfer to MCTC. He had heard about Latson through emails and phone calls before Latson arrived at MCTC, and he and others also knew about Latson from newspapers and the internet. Most offenders are received into the VDOC system at a reception center where they go through an intake process, but Latson was transferred directly from Rappahannock to MCTC and skipped the usual reception process, so it took the MCTC staff longer than usual to complete their assessment and other intake tasks. Recreational therapy supervisor Mark Guerry conducted a Recreation Therapy Assessment and planned for himself or another recreational therapist, Helen Fuqua, to meet with Latson one-on-one approximately three times per week to provide him recreational and therapeutic activities that matched his interests and abilities.

In a mental health appraisal dated November 4, 2014, Armes wrote that Latson has "Autism Spectrum Disorder, requiring support for deficits in social communication and for restricted repetitive behavior with accompanying intellectual impairment; and requiring support for some deficits in to-and-from conversation with accompanying language impairment." Pl.'s Opp'n Defs.' Mot. Summ. J. Ex. Y, Mental Health Appraisal 5, ECF No. 202-29. "Mr. Latson's significant adjustment difficulties are considered to be a reflection of his Autism Spectrum Disorder, his limited intelligence, a limited socialization history and associated limitations of judgment and impulse control." Id. at 6. "He has significant social connectedness deficits which could lead to conflictual social interactions and aggression when Mr. Latson misunderstands the social context of the contact." Id.

Latson was confined in special housing - segregation - for the majority of his time at MCTC. His housing status varied - sometimes it was listed as administrative segregation, and other times it was listed as general detention, pre-hearing detention, or disciplinary segregation - but these are all considered forms of special housing and all use the same cells. The changes in housing status affected the privileges he was afforded vis-à-vis personal property, commissary access, phone calls, and out-of-cell time, but not his actual location. The plaintiff refers to all of these special housing statuses as solitary confinement, but because that term is imprecise and somewhat misleading, I will refer to them collectively as restrictive housing.

Immediately upon his arrival at MCTC, Latson was placed in restrictive housing with a general detention status, purportedly to allow the staff to assess him and decide on an appropriate housing status. Although the applicable policy states that he should only have been in general detention status for three days, he was classified as general detention for six days. His status was then changed to administrative segregation for 30 days, pre-hearing detention for four days, administrative segregation for six days, disciplinary segregation for nine days, and administrative segregation for 55 days before he was placed in general population. This initial period in restrictive housing lasted from June 5, 2014, through September 22, 2014, for about three and a half months.

Latson then spent 12 days in general population before being returned to pre-hearing detention on October 5, 2014, remaining in that status for 14 days. His status was changed to general detention for two days and then to administrative segregation for 52 days. This second round of restrictive housing lasted about nine and a half weeks. Latson was then placed into general population again and spent 39 days there, from December 12, 2014, through January 19, 2015. Upon being conditionally pardoned by the Governor, he was returned to general detention status for four days. He was then placed in general population status and moved to his own wing of the prison for 11 days while he awaited transportation from MCTC to a private residential treatment facility in Florida, a condition of his pardon. He departed MCTC on February 2, 2015. In total, Latson spent 182 days in restrictive housing at MCTC and 62 days in general population.

Latson had some form of human interaction every day while he was in restrictive housing, although on a few days his only human contact was with a nurse through a slot in his cell door several times throughout the day. He was offered some form of out-of-cell recreation on most weekdays, although he did not always accept it. He was given the opportunity to shower at least once a week and at times every other day or every day, and he usually accepted the chance to shower, leaving his cell to do so. He spoke with either his mother or his attorney by phone most days while he was in restrictive housing, although several days would sometimes pass between phone calls. At one point, he may have gone as long as 12 days without a phone call, but he may have spoken with his attorney from his counselor's office during that time. Latson often used the counselor's office phone, and those calls were not logged. Latson testified that when he was in segregation, he was not permitted to make "privilege phone calls" until he had been there for 30 days. Pl.'s Opp'n Defs.' Mot. Summ. J. Ex. D, Latson Dep. 112-13, ECF No. 202-7.

In addition to daily nurse visits, he was visited by a member of his treatment team on at least 35 days while he was in restrictive housing. These visits were more frequent early in his incarceration at MCTC and slowed considerably as time went on. There were stretches of time when Latson went 11, 13, 20, and as long as 26 days without being visited by a member of his treatment team or by psychologist Ann Horst, nurse Tammy Jones, or Nurse Hall, although he did meet with recreational therapists at times during these periods, and nursing staff continued to check on him through his cell door several times per day. Other routine but infrequent interactions included occasional cell cleanings, delivery of mail, and haircuts. Latson sometimes went 48 hours or longer without being given the opportunity to leave his cell. At one point he refused recreation for several days and spent four consecutive days in his cell. In July and August, 2014, Latson declined recreation opportunities for a period of three and a half weeks, leaving his cell only for showers, a court hearing, a couple of phone calls, and a handful of medical appointments and treatment team meetings.

Latson testified that he refused recreation because he did not want to interact with the guards or cause any problems with them. He also sometimes refused to go outside because it was cold. During recreation, a guard would remove Latson from his cell and take him to an outdoor cage. There was nothing in the cage; it was simply a fenced outdoor space where he could do exercises like push ups. He would be the only inmate in his cage, although other inmates might be in their own cages. Latson did not want to interact with other inmates, who would call him over to talk to them, asking him questions and looking at him in ways that made him uncomfortable.

Latson was prescribed and administered medication beginning on June 7, 2014, his third day at MCTC. Aside from two days on which he was not given medication and one day on which he partially refused it, Latson took medication every day from June 7, 2014, through February 1, 2015, his final full day at MCTC. To facilitate weight gain, he was given Ensure from June 16, 2014, through August 14, 2014, and again from August 25, 2014, through February 2, 2015, with the exception of January 25, 2015. Nurse Jones prescribed Ensure because Latson's body mass index was at the low end of the normal range. There was a period of ten days during which, for no known reason, Latson was not provided Ensure.

When Latson was in disciplinary segregation, he was not permitted to have any books in his cell other than a religious text. When he was in other housing statuses, he at times had books in his cell. A radio played in the hallway outside his cell. While in disciplinary segregation, Latson's hygiene materials were kept outside his cell for security reasons, although his toilet paper remained in his cell. Latson usually did not ask for his hygiene items when he needed them because he was afraid of the guards.

MCTC implements Segregation Release Plans ("SRPs") to allow inmates in segregation to socialize with other offenders. During his time at MCTC, Latson had a series of SRPs, which were designed by Armes, reviewed by Watson, and approved by Jarvis. The SRPs provided that Latson could spend a certain amount of time per day, on a certain number of days per week, outside of his cell, usually in the day room on another wing or in the gym. While in the day room, he could make phone calls, watch television, play games, or otherwise interact with other inmates. When he was in the gym, he could not watch television or use the phone, but he could walk, play basketball, use an exercise bike, or do other physical activities, or he could choose to simply sit in the gym and do nothing. Whenever he had the opportunity to use the telephone, Latson usually called his mother or his attorney rather than partaking in other activities.

Latson's first SRP became effective on June 27, 2014, and provided for one hour per day, three days per week of out-of-cell time. During his first SRP, Armes or social worker Gary Lyons sat with Latson while he was out of his cell to ensure he was safe and socializing appropriately. Armes had not done this with other offenders. Latson's first SRP was in place for four days when Latson had an outburst and threw toiletry bottles against his cell door and water under his cell door. As a result of this incident, his SRP was terminated. An SRP was again implemented seven days later, on July 7, 2014, which provided for 30 minutes to one hour of out-of-cell time three days per week. That SRP remained in place for four days.

On July 11, 2014, Latson had another behavioral outburst and his SRP was suspended. He pushed his meal tray through the tray slot in his cell door, hitting a guard, and then refused to return his rubber cup. Latson has testified that he had intended to hit the guard with the tray. The guards handcuffed him to retrieve the cup, and while they were removing the handcuffs through the tray slot, they twisted and pulled his arm, he pulled away, and he sustained a laceration to his arm. He received sutures. According to Latson, blood from this incident remained in his cell for an extended period of time.

After the incident, Armes conducted an Offender Mental Health Assessment and "determined that Latson was mentally capable of being held responsible for the offense, that his mental disorders did not impair his understanding of the penalty offer that was made to him, that he was capable of effectively participating in the hearing, and that disciplinary segregation would not be detrimental to Latson's condition." Mem. Supp. Defs.' Mot. Summ. J. Ex. 33, Armes Aff. ¶ 1, ECF No. 182-34. Sarah Angliker, the chief social worker at MCTC, testified that the treatment team agreed with the decision to charge Latson with simple assault because they believed Latson knew what he was doing and knew it was wrong, but threw the tray in anger.

As a result of the July 11 offense, an Institutional Classification Authority Hearing ("ICA Hearing") was held on July 21. During an ICA Hearing, a multidisciplinary team is present, and everyone offers recommendations for the offender. An Institutional Classification Authority ("ICA") is a person who makes sure that the hearing is fair, correct, and sound. Assistant Warden Watson was designated to serve as the ICA.

To satisfy due process requirements for offenders in segregation, the inmate has to be served with paperwork in a timely manner and to know why he is there. Latson was served with the relevant paperwork for the July 21 hearing. The warden generally does not attend ICA Hearings, but the warden approves all recommendations, and in his absence, the assistant warden approves them. Latson pled guilty and accepted a penalty offer of 20 days of disciplinary segregation for his conduct on July 11.

Latson's next SRP took effect on August 8, 2014, and provided for 30 minutes to one hour of out-of-cell time at least three days per week. After seven days, his SRP was changed to provide for up to one hour of out-of-cell time at least five days per week. A new SRP form was completed on August 21, 2018, providing that on three out of the five days, Latson's out-of-cell hour would be spent in the gym during residential recreation time, while on the other two days, he would spend his out-of-cell time on wing 2B, where he had previously been going for SRP time. Wing 2B was a more controlled environment than other residential general population wings. This plan continued for several weeks until September 10, 2014, when his out-of-cell time was increased to up to two hours per day, five days per week, and the location was changed to wing 1D, a residential wing. This SRP was in place until Latson was moved to general population on September 23, 2014.

On October 5, 2014, Latson spat on an officer and was placed back in restrictive housing. He was not otherwise disciplined for the incident, but no new SRP was implemented for about seven weeks. Armes again conducted a mental health assessment and "determined that Latson was mentally capable of being held responsible for the offense, that his mental health disorders did not impair his understanding of the penalty offer that was made to him, that he was capable of effectively participating in the hearing, and that disciplinary segregation would not be detrimental to Latson's condition." Armes Aff. ¶ 12-13.

On November 21, 2014, a new SRP went into effect providing for one hour per day, five days per week to be spent on wing 2B. Two weeks later, the SRP was changed to allow for one hour per day on wing 1D in the morning and two hours in the evening, provided staff was available. This SRP remained in place until Latson was again moved to general population on wing 1D on December 12, 2014.

Armes testified that he did not want to overwhelm or overstimulate Latson, which is why he increased Latson's SRP time so slowly and why Latson initially spent time on wing 2B before going to wing 1D. There were fewer inmates in the gym than in the day rooms on the wings, so having Latson spend some of his time in the gym was also intended to ease him into socializing without overwhelming him. The goal of the SRPs was to eventually place Latson in general population. Latson was given more out-of-cell time than other offenders with serious mental health diagnoses. According to Armes, most offenders in segregation at the time were only granted one hour per day, three days per week of out-of-cell time, although the applicable policy stated that the typical frequency would be at least one hour per day, five days per week.

Julie Carpenter, Latson's former attorney, visited him on October 3, 2014, while he was in general population. Latson asked for her help in completing a grievance form, and she asked for permission to help him, but Watson and others refused to let Carpenter assist in completing or submitting the grievance. Prison staff told Carpenter that Latson had to either complete the form in his own hand or request help from a staff member. Latson was unable to complete the form himself due to his disabilities, so he did not file a grievance.

Latson's treatment team at MCTC was comprised of medical and mental health professionals, including those with expertise in psychology, psychiatry, and nursing, but they collectively had very little training or experience in working with persons with ASD. Angliker was the chief social worker and coordinator of the entire residential program at MCTC, and she supervised all the offenders and their treatment teams. She did not have any formal training specific to ASD. Angliker does not recall having any other inmates with ASD at MCTC before Latson. She did some internet research on Aspberger's syndrome and shared the information she found with the treatment team.

Lyons was the residential social worker assigned to Latson, and he was supervised by Angliker. Lyons was the case coordinator for Latson. He had no training specific to ASD.

Latson's team nurse was originally Lynn Rector and later changed to Jeffrey McGrady. Neither of them had training or experience in working with persons with ASD. Dr. Horst was the supervising psychologist and prescribed psychotropic medications. She was sometimes on site at MCTC and sometimes did telepsychiatry, talking to inmates over video conferencing. She had some experience treating autistic patients, although the extent of that experience appears to have been minimal.

Amanda McGrady, Ph.D., was a psychology supervisor at MCTC but was not really considered part of Latson's treatment team. She had previous experience working with children with autism under the age of 13 and with children and adults with intellectual disabilities. Armes, the psychology associate, did not receive any training at MCTC that was specific to working with people with ASD or ID and had no previous experience working with people with ASD. He did, however, complete annual training that covered the treatment of mentally disabled inmates, and he teaches classes on management of offenders with mental illness and suicidal tendencies, which are attended by all staff.

Clarke, the VDOC Director, was not personally involved in any decisions regarding Latson's care and treatment, including housing or disciplinary decisions. Clarke did not receive regular updates on Latson while he was housed at MCTC.

Jarvis was the Warden at MCTC until December 31, 2014. Although he was sometimes involved in discussions regarding Latson's treatment, he was not qualified to provide medical or mental health treatment and was not involved in determining what treatment was appropriate for any offender. Jarvis discussed Latson with his supervisors but does not recall the specifics of those conversations other than "we want to make sure we do what we need to do, because of all the attention that is focused on him, that we were in compliance with the law, and policy, and anything that relates to it." Pl.'s Opp'n Defs.' Mot. Summ. J. Ex. II, Jarvis Dep. 70-71, ECF No. 202-39.

Jarvis trusted the mental health professionals to determine whether an inmate's behavior was related to his disability. His first concern was for security and safety. His goal was to get inmates into general population as soon as he could. VDOC's strategy in recent years has been to reduce the use of segregation. Jarvis testified in his deposition, "I am aware that long-term segregation is not a healthy situation. But you have to weigh that against the potential for safety and violence, not being in segregation." Id. at 268.

Watson, the Assistant Warden and later Warden of MCTC, has had some training on working with individuals with ASD and ID, but she is not qualified to provide medical or mental health treatment. Watson had daily communication with Registered Nurse Coordinator Ella Davidson, Angliker, and Dr. McGrady. Watson frequently communicated with Jarvis about Latson. Watson and other wardens have been trained regarding the effects of isolation, and they are trying to minimize the use of segregation.

In his deposition, Latson testified that officers at MCTC had pushed him all the time. They also taunted him and accused him of faking his disabilities. Dr. McGrady admitted that there were some questions about Latson's ASD diagnosis because his IQ, though below average, was higher than might be expected for a person with ASD. Latson described an incident when Officer Croner, who was taking Latson to the shower area, had asked Latson if he wanted to run his mouth and had used a racial expletive. Latson Dep. 156, ECF No. 202-7. While he was in the shower, Latson told the officers, "Fuck you" because they were "taunting [him] and tormenting [him]." Id. He spat on Officer Hess. Id. at 157. Hess told Latson he thought Latson did not actually have autism and was faking it. Id.

On one occasion, Latson went to the chow hall and was looking for his friend, but Officer Hess told him to sit in a particular place. He did not want to sit there but he did as he was told. When Latson was walking back to his wing, he bumped into Hess. He was tired and was trying to avoid eye contact with Hess, and he accidentally brushed Hess's side. Latson apologized, and Hess said, "It might help if you open up your eyes and stop acting like there's something wrong with you." Mem. Supp. Defs.' Mot. for Summ. J. Ex. 11, Latson Dep. 153, ECF No. 182-12. Latson responded that it was cold and he was tired, and Hess told him to keep walking. Latson then said some other unspecified things, and Hess asked if he wanted to go back to wing 1B. Latson directed an expletive at Hess, and Hess then handcuffed Latson. Hess told Latson to put his hands behind his back, which Latson did, and then Hess used his knee to hold Latson up in the air and threatened to "stomp the dog shit out of" Latson. Id. at 155. Then several other officers came, and they all started pushing Latson back to segregation. Latson testified that he had been fully compliant and had not resisted the officers' efforts to guide him in the direction they wanted him to go. Latson also described another incident in which he had sworn at Hess.

Latson described his first cell at MCTC as small, with a toilet and a cement ledge with a comforter on top of it for a bed. The cell had a sink, and there was a window in the door. There was no window to the outdoors, and there was no clock. When Latson arrived, there was toilet paper in the cell. When he ran out, he did not ask for more because he was scared of the guards. He thought they would get angry and yell or cuss at him. At some point, Latson did not have a toothbrush, though he does not know what happened to it. He did not ask anyone about his toothbrush. He told his mother it was missing, she called prison officials, and he then received another toothbrush. Sometimes officers at MCTC would give Latson hygiene packages, which included toilet paper, a toothbrush, and toothpaste, among other things. Latson could not recall how often he received these packages.

Sometimes Latson would leave his cell to meet with his treatment team, but he does not remember how often he met with them. At one point, Latson had a popular magazine in his cell. He does not remember whether he had other books or whether he accessed the library. At times he purchased things from the commissary, including food items like chips. Attorney Greenman subscribed to some magazines for Latson.

Armes testified that Latson usually became agitated after talking to his mother on the phone. When the treatment team was around, they would work with Latson to de-escalate the situation. Armes would remind the team not to make eye contact with Latson. Armes told the treatment team that their uniforms alone could trigger Latson.

Latson's care manager, Lyons, was required to have one-on-one meetings with Latson. Armes sometimes met with Latson outside of Latson's cell, in a conference room. Latson directed the conversations but often did not talk much. Often Armes and Latson would watch television or he would talk with his mother or lawyer on the phone during meetings with Armes. These meetings would last an hour or less.

Recreational therapist Guerry suggested a points-based rewards system for Latson, but Latson thought it was childish and did not want to participate. Guerry implemented the use of stickers in keeping Latson's daily log while he was housed in wing 2B. Guerry initially met with Latson in the day room to complete the daily log forms, but he eventually began giving Latson the forms to complete on his own in his cell. Latson stopped completing the forms, stating that they were not helping him. Guerry spent more time on Latson than other offenders, both in one-on-one meetings and treatment team meetings. When Latson did not want to participate in group activities, Guerry would leave coloring pages or other materials for him to complete in his cell. Guerry invited Latson to play volleyball several times, but Latson always declined. He also declined to participate in other activities like basketball.

Watson testified that inmates who receive conditional pardons are placed in segregation for their protection to prevent other inmates from harming them. After he was conditionally pardoned, Latson was placed in general detention status and moved to a segregation cell for several days until Watson secured an empty wing for him, wing 2C. While in general detention status, his privileges were limited and his personal property was taken from him. He did not initially have access to books, although he was eventually given books and magazines. While on wing 2C following his pardon, an officer was present with Latson around the clock. Latson had access to books, puzzles, a television, and a telephone. Guards reviewed his commissary list with him, and he was able to shower. He had a music player. He was required to be in his cell two times per day, but otherwise he could leave his cell freely to watch television or make phone calls in the day room. He was allowed to leave the wing for recreation.

Throughout Latson's time at MCTC, attorney Greenman frequently emailed and called staff expressing concerns about conditions and events as Latson had described them to her. She explained that Latson struggled to identify his needs and had difficulty asking guards for things. In her communications with MCTC staff, she asked about the SRPs, requested that they consult with a sister Virginia agency about how to work with people with ASD, asked what Latson could access, and expressed concern about his weight loss and how being in isolation would affect his mental health. Greenman connected MCTC staff with Barry Seaver of the Virginia Department of Behavioral Health and Disability Services, who was willing to assist MCTC with Latson's treatment, but MCTC staff did not follow up on that offer. Greenman visited Latson at least once while he was at MCTC, on August 5, 2014. She ordered books and magazines for him and repeatedly asked for him to be provided greater stimulation, specifically requesting that he be given a television or radio. Watson and Dawkins joked about that request, with Watson writing, "She is asking for a bit much." Pl.'s Opp'n Defs.' Mot. Summ. J. Ex. RRR, ECF No. 202-74.

MCTC staff were contacted and visited by outside investigators with the Virginia Attorney General's Office and the Disability Law Center of Virginia concerning Latson during his incarceration. They gathered and produced documentation and kept detailed daily reports on Latson's treatment and behavior. Watson in particular was well aware that MCTC was under intense scrutiny regarding its treatment of Latson.

Denise Malone, VDOC's chief psychologist, received emails from Greenman and communicated with the treatment team and others about Latson. On October 27, 2014, Malone wrote to the treatment team and other MCTC staff:

Per Eric Madsen, you folks at MCTC have done a really good job with reasonable accommodations. So my questions would be this ... would we be willing to have the ADA folks tour MCTC? Can we invite them to provide a free training on Autism Spectrum Disorder? I don't expect us to be experts on this ... it occurs very infrequently among our offenders.

Id. at Ex. FFFF, ECF No. 202-88. Dr. McGrady replied:

Mr. Jarvis opposes the idea of the ADA coming for a tour, or to provide training for staff. He feels that staff at MCTC have provided the best care possible for Mr. Latson. I am in support of this opinion. I actually feel that Mr. Latson has demonstrated improvement in some areas while here.

Id. Malone responded, "I'm not disagreeing with you both, but we need to cover all bases. Is there anyone on your staff with documented experience & training in working with Autism Spectrum Disorder? If so, is that person seeing Latson?" Id. Dr. McGrady replied:

I would probably be the only person with experience seeing anyone with Autism Spectrum Disorder, although mostly I saw children and teens diagnosed with it. I am not meeting with Mr. Latson, although I do see him on morning rounds every day. I am supervising Chris [Armes] who sees him, however.

Id.

On November 24, 2014, Malone emailed Lyons, Armes, Dr. McGrady, and others with "a few notes to capture what we discussed Friday morning, for your consideration to include in treatment plan." Id. at Ex. RRRR, ECF No. 202-100. One of the things she suggested was to "[p]rovide more written materials the offender can keep in his cell, such as on numerology, stars, Beyonce, and other favorite topics. Also might provide more materials as reinforcement." Id. Other suggestions included "[c]onsider a consultation from Jeena Porterfield, who knows the client well and had relatively good outcomes when he was in her unit," and "[e]ngage educational mentors/tutors/teachers as offender seems motivated to learn." Id.

On December 10, 2014, Malone forwarded an email from Greenman to Dr. McGrady, Armes, Lyons, Watson, and others, instructing the treatment team to "continue to move forward clinically as you have determined would be beneficial. If as she suggests, showing advocate schedule would lead to her getting offender to engage, please consider doing so." Id. at Ex. TTT, ECF No. 202-76.

Psychologist Horst testified in her deposition that it would have been better for Latson to have had books or playing cards or other stimuli in his possession. She noted, however, that "this is a security driven institution and it was not within my purview to be able to order any of this. I could order it if I wanted to order it all day long. I could write down the order, it would not have been followed." Id. at Ex. CCC, Horst Dep. 74, ECF No. 202-59.

On December 23, 2014, as part of a U.S. Department of Justice investigation, Johannes Rojahn, Ph.D., visited MCTC. Dr. Rojahn is a psychologist with expertise in ID and ASD. He issued a report dated February 16, 2015. Dr. Rojahn wrote that Latson's "difficulty with executive functioning becomes aggravated in stressful and anxiety-evoking situations, which are the ones in which he sometimes resorts to outbursts." Id. at Ex. EEE, Rojahn Report 2, ECF No. 202-61. He stated that "while not a core symptom, aggressive behavior is highly prevalent in individuals with ASD, as well as in individuals with intellectual disabilities." Id. People with ASD often have "unusual reactions to sensory input, such as noises or being touched. This fits with the observation of Mr. Latson's aversion and frequent angry outbursts when being physically searched." Id.

When Dr. Rojahn interviewed Latson, Latson said he did not trust other inmates and preferred to keep to himself. In Dr. Rojahn's opinion, "the step-down stages of the SRPs are too long and slow-paced for Mr. Latson, thus compromising the effectiveness of the treatment plan." Id. at 4. "[O]fficers administering the disciplinary procedures are likely to turn into adversaries for Mr. Latson, further fueling his feelings of anger and hostility towards them, and setting off a negative spiral of increasing aggressive behavior."Id. Dr. Rojahn wrote that "[t]he existing MCTC disciplinary action with segregation and SRPs, in my opinion, is bound not only to fail to improve Mr. Latson's behavior but to deteriorate it." Id.

Dr. Rojahn further advised as follows:

A token system with clearly defined behaviors and consequences can, in principle, be a very reasonable and powerful element in a behavioral treatment plan in as much as it can give Mr. Latson control over his behavior over short time periods, which helps him ... bridge the long time required to stay out of trouble. The main problem [with the system being used by MCTC] is that there are no 'backup-reinforcers' (e.g., a can of Coke from the commissary, a phone call to his mom, a picture of his family, access to TV in his cell) available to Mr. Latson for earned stickers (tokens). Although Mr. Latson may appreciate the social acknowledgement by the therapist when a sticker is dispensed, it is unlikely that those tokens will have a lasting reinforcing effect in helping Mr. Latson to suppress anger outbursts when the occasion arises.

Id. at 5. Dr. Rojahn noted that the treatment team had not done a functional assessment of Latson's behavior challenges. "Functional assessment is a necessary step in behavior programs that are designed to decelerate or eliminate behavior problems." Id.

Dr. Rojahn gave the following description of the physical environment in which Latson was living:

The environment at MCTC is harsh, barren, and forbidding. Even Mr. Latson's general population cell is cold and empty, with a narrow cot covered with a thin blanket without a pillow, beige tiles covering the walls, terracotta floor, a large but grimy barred window, and a metal toilet and water fountain unit. The iron door has a ceiling light (a bright light and a dimmed light) and toilet flushing are [sic] controlled from outside the cell. The physical characteristics of the 'general population' space is [sic] not much more inviting. Stale odor from antiseptic solutions everywhere. One TV set high up in a corner, heavy square wood furniture with plastic covers. Units also have a 'porch,' which has a concrete floor, a few windows, some chairs and a picnic table. For outside recreation there is a 15' x 25' fenced-in, empty cage available. In other words, together with the inflexible MCTC disciplinary protocol, it is an atmosphere ill equipped for psychological and behavioral treatment.

Id. Dr. Rojahn recommended that a community living facility would be a much better option for Latson.

Eldon Vail, an expert in prison administration, opines that "MCTC failed to keep a person with known disabilities such as those described for Mr. Latson safe from significant risk of serious harm." Id. at Ex. L, Vail Report 5, ECF No. 202-16. Vail further opines that "Latson did not receive appropriate mental health treatment" at MCTC. Id. at 6. Moreover, his "segregation was unreasonably punitive, contrary to well-established standards for such segregation and was, in fact, contrary to good prison security." Id. Vail describes MCTC as "out of step with current standards and the research for the treatment of individuals with disabilities such as Mr. Latson's within the correctional environment." Id. at 7.

Vail says that the defendants should not have placed Latson immediately into restrictive housing because doing so was likely "to increase his risk for deterioration and self-harm and in the long run make him a greater danger to others." Id. at 10. Vail characterizes Latson's occasional refusal of recreation as showing "a lack of reward or stimulation Mr. Latson experienced when he did elect to go out to recreation." Id. at 14-15. According to Vail, the treatment plan for Latson was weak and not really feasible when most interactions occurred through a cell door while Latson was in restrictive housing. Id. Vail writes that "with appropriate treatment and intervention, Mr. Latson's risk for aggression should decrease, making his time spent while incarcerated safer both for him and those with whom he would come into contact." Id. at 20.

In his deposition, Vail explained that many states have tried to get mentally ill inmates out of segregation because "[t]hey don't conform as rational actors to the rules of the prison, and so they often times wind up in trouble," and "that exacerbates their underlying mental illness." Id. at Ex. M, Vail Dep. 65, ECF No. 202-17. Mentally ill inmates "need to be out of their cell, either engaged directly into treatment activities or environments that allow them to practice what they are learning in those treatment environments," which could be "as simple as a structured social interaction with other prisoners." Id. at 69. "The ratio of support versus punishment or discipline should be much greater to manage somebody like Mr. Latson. He's got to feel like he connected to someone who is there to help him." Id. at 79. A person with a developmental disability "should be placed in segregation when it needs to happen for their safety and for other people's safety, but the duration of that confinement should be determined based on their treatment needs." Id. at 86.

Louis J. Kraus, M.D., is an expert in child and adolescent psychiatry, including in residential treatment and correctional facilities. Dr. Kraus met with Latson twice and diagnosed him with ASD, recurrent major depression, PTSD, and generalized anxiety disorder. Depression and anxiety are separate and distinct diagnoses from ASD and are episodic. "One of the most common episodic reasons that patients with an Autistic Spectrum Disorder become agitated is because of worsening anxiety. Mr. Latson's coping strategies and executive functioning are quite poor. In particular in situations of acute anxiety he will act out in an agitated and sometimes violent way." Id. at Ex. Q, Kraus Report 29, ECF No. 202-21. Dr. Kraus notes that "there was an intermittent component to Mr. Latson's behavior." Id. at 17. "There were episodic periods of time where Mr. Latson would become agitated. There were episodic periods of time where his anxiety was worsened and there are episodic periods of time where his depression was worsened." Id. at 18. The fact that he was at times suicidal "shows the episodic history that Mr. Latson has regarding major depressive and anxiety symptoms, in association with the chronicity of his pervasive developmental disorder /his autistic spectrum diagnosis." Id. at 20.

Dr. Kraus states that Latson's SRPs did not take into account the impact of segregation on a person with ASD. He opines that the system of using stickers as rewards or reinforcements "likely had limited therapeutic value." Id. at 24. According to Dr. Kraus, MCTC's "rigid positive behavioral plan, was unlikely to have any significant therapeutic value to an individual with autism such as [Latson]." Id. at 29. MCTC staff should have "had consults on how to appropriately treat and intervene" with Latson. Id. at 30.

Dr. Kraus opines that Latson's psychiatric care was substandard in that he was not prescribed appropriate medications. Id. In addition, "[b]ehavioral plans for adults need to be more variable and there needs to be an attempt in following through on what is effective and how to modify the behavioral plan when it is not effective." Id. "[T]here were essentially no therapeutic interventions for Mr. Latson other than the almost unchanging medication management, while he was in segregation. The brief check-ins by mental health do not qualify as mental health treatment." Id. Dr. Kraus suggests that depriving Latson of his coping mechanisms like music and reading "is tantamount to not giving an asthmatic their inhaler when they are having an asthma attack." Id.

In Dr. Kraus's opinion, Latson's "reaction to staff in situations were directly related to his disabilities and how he was being treated." Id. at 31. "Extensive segregation, particularly with individuals with developmental delays (Autism ), Intellectual Disabilities and Mental health diagnosis is damaging. It can lead to worsening anxiety and mood symptoms ...." Id. Dr. Kraus stated that "I think that there are interventions which would have and should have fallen under mental health that could have been implemented that could have ... either, one, reduced the amount of time that he was in some form of solitary confinement or, two, at least had minimized symptomatology and struggles which [he] was having." Suppl. Br. Supp. Pl.'s Opp'n Mot. Summ. J. Ex. I, Kraus Dep. 194, ECF No. 240-10. Explaining what he believes should have been done, Dr. Kraus explained:

You're treating the symptomatology associated with autism. You're treating the speech and language deficits. You're understanding that his ability to understand language is very simple. He understands simple - perhaps one, two levels of statements in a sentence. You have to be very direct and uncomplicated. He misperceived nonverbal presentations. He is particularly sensitive to different types of confrontation, which he engenders intense anxiety and behavioral outbursts. He has a proclivity for significant anxiety and mood symptoms, depressive symptoms. All of which, for the most part, are really not being addressed.

Id. at 194-95.

Based on what I reviewed, there is a paucity of understanding of what to do with an autistic young adult that was having the areas of deficit and struggles that Mr. Latson had. There is essentially nothing in there that will show me that there was an understanding of how to work with him. And just like when you have a serious medical problem that goes beyond what the general practitioner, internist at the facility is capable of doing or handling - say an eye problem or an acute cardiac problem or something like that - you get a consult. You bring people in to the facility or send them out to be assessed to help.

Id. at 197. Dr. Kraus conceded, however, that "[t]here were interventions. Now, what those interventions were and how helpful, that's a different question. But there clearly is documentation of interventions and mental health talking to him." Defs.' Reply to Suppl. Br. Ex. 73, Kraus Dep. 167, ECF No. 242-3.

Peter Leone, Ph.D., is an expert on treatment of people with disabilities in institutional settings. Dr. Leone opines that "Mr. Latson's behavioral outbursts are a manifestation of his disabling condition." Pl.'s Opp'n Defs.' Mot. Summ. J. Ex. NNNN, Leone Report 5, ECF No. 202-96. The SRPs for Latson "required him to avoid 'assaultiveness, aggressiveness, hostility, agitation, being argumentative' and non-compliance," which are manifestations of his disability and behaviors with which he had struggled for years. Id. at 7. According to Dr. Leone, "the actions of the VDOC exacerbated Mr. Latson's behavior and have compounded his legal difficulties and his ability to successfully reenter the community following treatment or incarceration." Id. at 8. At his deposition, Dr. Leone testified that he does not believe MCTC staff were trained effectively because Latson was written up eight times at a specialized facility and was sent to disciplinary segregation a few weeks after arriving there. According to Dr. Leone, the things Latson was asked to do in the SRPs were not really appropriate for him because "his troubles are in part a manifestation of his behavior and instead of providing accommodations, they say, okay, we're going to lock you down." Suppl. Br. Pl.'s Opp'n Mot. Summ. J. Ex. H, Leone Dep. 120, ECF No. 240-9.

Nakia M. Hamlett is a psychologist with expertise in young adults with intellectual and psychiatric impairments. She opines that "reactive aggression is extremely common in individuals with Autism Spectrum disorders due to an array of functional communication and social skills deficits that they often experience." Pl.'s Opp'n Defs.' Mot. Summ. J. Ex. U, Hamlett Report 3, ECF No. 202-25. Because of his experiences at MCTC and Rappahannock, Latson "experienced a complete psychiatric breakdown such that he decompensated and became acutely psychotic for a period of time." Id. at 4. Hamlett says that Latson "will never fully recover from these experiences and may never be able to be the independent young adult he hopes to be." Id. at 5. The cost of Latson's treatment and housing going forward is estimated to be from $100,000 to $300,000 per year. Id. at 6.

It is important to note that the plaintiff has relied in opposition to summary judgment on hearsay statements of attorney Greenman concerning Latson's conditions of confinement and treatment at MCTC, information that she learned from others and passed on to MCTC staff by email. Some of the information conveyed appears to have been told to Greenman by Latson, while the sources of other statements are unclear. Of course, the rules of evidence permit Greenman to testify to what she actually observed and as to statements made to her by the defendants or their agents. Additionally, hearsay statements contained in Greenman's emails can be considered to the extent that they provided notice of certain events or conditions to the defendants. They cannot, however, be considered for the truth of the matters asserted. Latson's own deposition has been submitted in the summary judgment record and has been considered by the court in determining the issues in this case. Greenman's hearsay statements have not.

"[H]earsay evidence, which is inadmissible at trial, cannot be considered on a motion for summary judgment." Md. Highways Contractors Ass'n v. Maryland , 933 F.2d 1246, 1251 (4th Cir. 1991). The burden is on the proponent of summary judgment material to show its admissibility. Fed. R. Civ. P. 56(c)(1)(B) advisory committee's note to 2010 amendment. Counsel for Latson suggested in oral argument, Tr. 54, ECF No. 237, that "[w]e recognize defendants are raising a hearsay argument with respect to those emails. There are contemporaneous recordings of conversations that she had with Mr. Latson. I think they come in under the catchall exception to hearsay."

Rule 807 of the Federal Rules of Evidence, called the Residual Exception, provides that hearsay statements that are not covered by another exception contained in Rule 803 or 804 may be admissible if:

(1) the statement has equivalent circumstantial guarantees of trustworthiness;

(2) it is offered as evidence of a material fact;

(3) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; and

(4) admitting it will best serve the purposes of these rules and the interests of justice.

Fed. R. Evid. 807(a). The residual exception "is a narrow exception that should not be construed broadly" because to do so "would easily cause the exception to swallow the rule." United States v. Dunford , 148 F.3d 385, 394 (4th Cir. 1998).

I find that the plaintiff cannot satisfy these criteria. Greenman's deposition testimony does not make clear the sources of the information conveyed in her emails. The information therefore has not been shown to be trustworthy. To the extent Latson gave her this information, Latson has been deposed and would be able to testify at trial. There is no need for the information to be presented in the form of hearsay through Greenman's emails. The emails are not the most probative evidence available, and admitting them would not serve the interests of justice. Because Latson has not satisfied the requirements of Rule 807, the hearsay statements contained in Greenman's emails are not proper evidence to oppose the defendants' Motion for Summary Judgment, and I have disregarded them.

II.

Summary judgment is appropriate when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). To raise a genuine issue of material fact sufficient to avoid summary judgment, the evidence must be "such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In making this determination, "the court is required to view the facts and draw reasonable inferences in a light most favorable to the nonmoving party." Shaw v. Stroud , 13 F.3d 791, 798 (4th Cir. 1994). "Mere unsupported speculation ... is not enough to defeat a summary judgment motion." Ennis v. Nat'l Ass'n of Bus. & Educ. Radio, Inc. , 53 F.3d 55, 62 (4th Cir. 1995).

Summary judgment is not a "disfavored procedural shortcut," but an important mechanism for disposing of "claims and defenses [that] have no factual basis." Celotex Corp. v. Catrett , 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). It is the "affirmative obligation of the trial judge to prevent factually unsupported claims and defenses from proceeding to trial." Drewitt v. Pratt , 999 F.2d 774, 778-79 (4th Cir. 1993) (internal quotation marks and citations omitted).

A. Statute of Limitations for ADA and RA Claims.

The ADA and RA claims, Counts Six and Seven of the Amended Complaint, are brought against VDOC. Latson claims that VDOC violated these statutes by failing to accommodate his disabilities. VDOC renews its invocation of the statute of limitations as to Latson's claims under the ADA and RA.

Given the similarities between the ADA and the RA, the same limitations period is applied to both causes of action. Semenova v. Md. Transit Admin. , 845 F.3d 564, 567 (4th Cir. 2017).

Latson left MCTC on February 2, 2015. His action was filed in the United States District Court for the Eastern District of Virginia on April 21, 2016. The plaintiff does not dispute that his claims against VDOC accrued before February 2, 2015. The sole issue is whether a one-year period of limitations applies to bar those claims.

Because Title II of the ADA does not contain a statute of limitations, courts must either apply the federal four-year catch-all limitations period or the state statute of limitations for the most analogous state-law claim.

A Soc'y Without a Name, for People Without a Home, Millennium Future-Present v. Virginia , 655 F.3d 342, 347 (4th Cir. 2011). The four-year federal catch-all period applies only to claims arising under statutes enacted after December 1, 1990, and the ADA was enacted a few months before that, on July 26, 1990. Id. Therefore, as a general rule, "the one-year limitations period in the Virginia [Rights of Persons with] Disabilities Act applies to ADA claims brought in Virginia." Id. at 348. The ADA was amended, however, in 2008. ADA Amendments Act of 2008, Pub. L. No. 110-325, 122