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Solitary Confinement in Virginia


April 18, 2023 by Tom Roberts, Esq.

Virginia Solitary Confinement - When does it become "cruel and unusual"?

Is the Cumulative Effect Extreme?

Does the segregation or solitary cause significant physical or psychological harm?

The Fourth Circuit states that in Virginia, only the cumulative effect of several conditions including such things as basic sanitation and nutrition, brings solitary confinement within the prohibition against cruel and unusual punishment under the Constitution’s 8th Amendment, not just “harsh or unpleasant” conditions.  It violates the 8th Amendment prohibition against cruel and unusual punishment when it causes significant physical or psychological harm to the inmate.  Solitary’s duration may be too long on a case by case analysis. 


The Virginia Department of Corrections has guidelines for the use of segregation, which is the term used for solitary confinement in the state. According to these guidelines, inmates may be placed in segregation for disciplinary reasons, administrative reasons, or for protective custody. However, the guidelines also state that segregation should only be used as a last resort, and that inmates in segregation should receive daily out-of-cell time, access to mental health services, and other basic needs.

Prolonged or indefinite confinement in segregation may be unconstitutional, as it can cause significant psychological harm.

Case-by-case basis, taking into account the specific circumstances of each individual case.

Va Code § 53.1-39.1

Virginia passed restrictions on solitary confinement calling it “restorative housing” or “restrictive housing”

See DOC report.

“Restrictive housing” means special-purpose bed assignments operated under maximum security regulations and procedures, and utilized under proper administrative process, for the personal protection or custodial management of offenders. The Department of Corrections’ restrictive housing shall, at a minimum, adhere to the standards adopted by the American Correctional Association, the accrediting body for the corrections industry.

 All cells/rooms in restrictive housing provide a minimum of 80 square feet, and shall provide 35 square feet of unencumbered space for the first occupant and 25 square feet of unencumbered space for each additional occupant.
COMMENT: Restrictive housing inmates are confined in cells/rooms for more extended periods during the day. Therefore the cell/room must provide additional space for in-cell activity.

Adult Correctional Institutions (ACI), 4th Edition 4-4147 Revised August 2006. (Existing only.)

 All inmate rooms/cells provide access to natural light.

Adult Correctional Institutions (ACI), 4th Edition 4-4256 Revised January 2014.

 Written policy, procedure, and practice provide that a qualified mental health professional personally interviews and prepares
a written report on any inmate remaining in restrictive housing for more than 30 days. If confinement continues beyond 30 days, a mental health assessment by a qualified mental health professional is made at least every 30 days for inmates who have an identified mental health need, and every three months for all other inmates – more frequently if prescribed by the chief medical authority.
COMMENT: In restrictive housing, access to care must be ensured for persons suffering from health related concerns including mental illness. Because some mentally ill persons may not actively seek care, regular assessment is essential to ensure a patient’s stability while in restrictive housing. As referenced in this
standard, the phrase “identified mental health need” is not intended to refer to persons whose mental illness involves only prior diagnosis of a substance disorder, unless directed to include such persons by the chief medical authority.

Adult Correctional Institutions (ACI), 4th Edition  4-4405 Revised January 2006. (Mandatory) 

The use of restraints for medical and psychiatric purposes is defined, at a minimum by the following:
• Conditions under which restraints may be applied.
• Types of restraints to be applied.
• Identification of a qualified medical or mental health care practitioner who may authorize the use of restraints after reaching the conclusion that less intrusive measures would not be successful.

• Monitoring procedures for offenders in restraints.
• Length of time restraints are to be applied.
Documentation of efforts for less restrictive treatment alternatives as
soon as possible.
• An after-incident review.
COMMENT: Written policy should identify the authorization needed and when, where, and how restraints may be used and for how long.

Adult Correctional Institutions (ACI), 4th Edition 4-ALDF-2A-51

Restrictive housing units provide living conditions that approximate those of the general inmate population. All exceptions are clearly documented.
Restrictive Housing cells/rooms permit the inmates assigned to them to converse with and be observed by staff members. Cells/rooms in restrictive
housing provide a minimum of 80 square feet, and shall provide 35 square feet of unencumbered space for the first occupant and 25 square feet of unencumbered space for each additional occupant.

COMMENT: Restrictive housing inmates are confined in cells/rooms for more extended periods during the day. Therefore the cell/room must provide additional space for in-cell activity.
PROTOCOLS: Written policy and procedure. Facility plans/specifications.
PROCESS INDICATORS: Observation. Measurement. Inmate interviews.

An agency’s policies, procedures, and practices limit the placement of an inmate in restricted housing to circumstances “that pose a direct threat to the safety of persons or a clear threat to the safe and secure operations of the facility” (4- RH-0001). 16
• An agency’s policies, procedures, and practices attempt to ensure an offender is not released directly to the community from restricted housing (4-RH-0030).
• The agency will not place a person with a serious mental illness into extended restrictive housing (4-RH-0031). The standards consider isolating an offender from the general population and restricting the offender to a cell for at least 22 hours a day for more than 30 days to be extended restrictive housing. The definition of serious mental illness includes psychotic disorders, bipolar disorders, and major depressive disorder, along with “any diagnosed mental disorder … currently associated with serious impairment in psychological, cognitive, or behavioral functioning that substantially interferes with the person’s ability to meet the ordinary demands of living and requires an individualized
treatment plan by a qualified mental health professional(s).”17
• An agency’s policies, procedures, and practices offer “step down programs” that meet specified basic standards to assist inmates in returning to either the prison general population or the community (4-RH-0032).
• Pregnant inmates will not be placed in extended restrictive housing (4-RH-0033).
• Placing inmates under 18 years of age in extended restrictive housing is prohibited (4-RH-0034).
• An inmate will not be placed in restrictive housing solely on the basis of gender identity (4-RH-0035). 

The other standards cover topics similar to the ACI standards: how inmates are placed in and removed from restricted housing, living conditions in restricted housing, access to services and programs, visits from correctional and mental health staff, and status reviews of placements.  See MONTANA LEGISLATIVE SERVICES DIVISION Office of Research and Policy Analysis

Va Code § 53.1-40.11

In an article dealing with inmates known to be pregnant, the state defines solitary confinement: “Solitary confinement” means isolation of a prisoner from the general population through confinement to a cell or other place for 22 or more hours within a 24-hour period.


“The Eighth Amendment, which prohibits the infliction of ‘cruel and unusual punishments,’ U.S. Const. amend. VIII, applies to claims by prisoners against corrections officials challenging conditions of confinement.” Porter, 923 F.3d at 355. “In the prison context, it ‘protects inmates from inhumane treatment and conditions while imprisoned.'” Iko v. Shreve, 535 F.3d 225, 238 (4th Cir. 2008) (quoting Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir. 1996)). Further, “the conditions of solitary or segregated confinement must be measured against what the Supreme Court has termed ‘the evolving standards of decency that mark the progress of a maturing society.'” Sweet v. S.C. Dep’t of Corr., 529 F.2d 854, 860 (4th Cir. 1975) (en banc) (quoting Trop v. Dulles, 356 U.S. 86, 101, 78 S. Ct. 590, 2 L. Ed. 2d 630 (1958) (plurality opinion)). To sustain an Eighth Amendment claim, a prisoner must show two things: 1) “the deprivation suffered or injury inflicted on the inmate was sufficiently serious (objective component),” and 2) “the prison official acted with a sufficiently culpable state of mind (subjective component).” Iko, 535 F.3d at 238.
Rivera v. Mathena, 795 F. App’x 169, 174 (4th Cir. 2019)

PRONG #1 - OBJECTIVE ---- Is the deprivation suffered or injury inflicted objectively sufficiently serious?

Does the deprivation pose a risk of “serious or significant physical or emotional injury”?

Prisoner must demonstrate that “the deprivation alleged [was], objectively, sufficiently serious.” Scinto v. Stansberry, 841 F.3d 219, 225 (4th Cir. 2016) (quoting Farmer v. Brennan, 511 U.S. 825, 834, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994)). “To be ‘sufficiently serious,’ the deprivation must be ‘extreme’—meaning that it poses a ‘serious or significant physical or emotional injury resulting from the challenged conditions,’ or ‘a substantial risk of serious harm resulting from…exposure to the challenged conditions.‘” Porter, 923 F.3d at 355 (quoting Scinto, 841 F.3d at 225).
Rivera v. Mathena, 795 F. App’x 169, 174 (4th Cir. 2019)

When is prolonged solitary confinement too much amounting to cruel and unusual punishment in Virginia?

The Fourth Circuit stated:

Finally, we know that “[p]rolonged solitary confinement exacts a heavy psychological toll that often continues to plague an inmate’s mind even after he is resocialized.” Porter, 923 F.3d at 357 (quoting Incumaa v. Stirling, 791 F.3d 517, 534 (4th Cir. 2015)). Indeed, Rivera began exhibiting the very psychological  deterioration which we have warned against when inmates are in solitary confinement, including depression, low energy, difficulty sleeping, and loss of appetite, making it even more important that Rivera be able to leave his cell for showers and recreation. See id. at 356-57 (discussing “the associated adverse psychological reactions to solitary confinement…include…symptoms of depression, withdrawal, appetite and sleep disturbance, fatigue and lethargy, and suicidal ideation; anxiety spectrum symptoms of subjective distress, feelings of impending doom, somatic complaints, dissociative experience, and ruminative thoughts; affective lability characterized by irritability, rage, and aggressive impulses; and behavioral self-control symptoms of aggression, assaults, and self-mutilation”); see also J.A. 115 (“[W]hat [Rivera] remembers is being in a cell all day all that time 24/7 loneliness, depression, pain, like [Rivera] was no human being at all.”). Rivera thus depended on regular showers and exercise periods as one of the few times to leave his cell in order to maintain his physical, mental, and emotional health. Therefore, as a result of his four years in segregation, Rivera faced a substantial risk of serious psychological harm which was increased by shower and exercise deprivations, as his injuries demonstrate. See Sweet, 529 F.2d at 866 (“Such indefinite limitation on exercise may be harmful to a prisoner’s health, and, if so, would amount to ‘cruel and unusual’ punishment.”).
Rivera v. Mathena, 795 F. App’x 169, 175 (4th Cir. 2019)

PRONG #2 - SUBJECTIVE - deliberate indifference, meaning "the official knew of and disregarded an excessive risk to an inmate's health or safety.

Is it so “Obvious” that the official must have known?

The second prong of an Eighth Amendment violation is the subjective prong. To demonstrate the subjective component, a prisoner must show deliberate indifference, meaning “the official kn[ew] of and disregard[ed] an excessive risk to inmate health or safety.” Porter, 923 F.3d at 361 (quoting Scinto, 841 F.3d at 225). “Deliberate indifference is ‘more than mere negligence,’ but ‘less than acts or omissions [done] for the very purpose of causing harm or with knowledge that harm will result.'” Id. A prisoner may satisfy this standard by “prov[ing] by circumstantial evidence that a risk was so obvious that it had to have been known.” Makdessi v. Fields, 789 F.3d 126, 136 (4th Cir. 2015). “[O]nce prison officials become aware of a problem with prison conditions, they cannot simply ignore the problem, but should take corrective action when warranted.” Williams v. Griffin, 952 F.2d 820, 826 (4th Cir. 1991).
Rivera v. Mathena, 795 F. App’x 169, 175-76 (4th Cir. 2019)

Or is there direct evidence of deliberate indifference by the official?

The use of excessive force against a prison inmate by corrections officials violates the Eight Amendment’s prohibition against cruel and unusual punishment. Hudson v. McMillian, 503 U.S. 1, 5, 112 S. Ct. 995, 117 L. Ed. 2d 156 (1992). The claimant in an excess force case, however, must meet the heavy burden of establishing that the corrections officials applied force “maliciously and sadistically for the very purpose of causing harm” rather than in a good faith effort to maintain order in the prison setting. Whitley v. Albers, 475 U.S. 312, 320-21, 106 S. Ct. 1078, 89 L. Ed. 2d 251 (1986).  The factors that Courts should look to in assessing corrections officials’ conduct include: (1) the necessity of the application of force; (2) the relationship between the need for force and the amount of force used; (3) the extent of injury actually inflicted; (4) the extent of the threat to safety to the staff and prisoners; and (5) the efforts taken by the officials to temper the severity of the force applied. Whitley, 475 U.S. at 321.Taylor v. Nettles, Civil Action No. 1:11-1479-TLW-SVH, 2012 U.S. Dist. LEXIS 134332, at *3-4 (D.S.C. Sep. 20, 2012)


Exhaustion Requirement:

In most cases, an inmate must exhaust all available administrative remedies before bringing a §1983 claim for cruel and unusual punishment. This requirement is known as the exhaustion requirement and is designed to give prison officials an opportunity to address and potentially resolve an inmate’s complaints before resorting to litigation.

Before an inmate can bring a 1983 claim for cruel and unusual punishment, they must first exhaust all available administrative remedies, such as filing grievances or appeals through the prison’s administrative procedures.

However, there are some exceptions to the exhaustion requirement. For example, if an inmate can show that the administrative remedies were unavailable or that they were prevented from pursuing them, they may be excused from the exhaustion requirement. Additionally, if an inmate’s claims involve allegations of a systemic problem or a pattern of conduct by prison officials that cannot be remedied through the administrative process, they may also be excused from the exhaustion requirement.

In summary, in most cases, an inmate must exhaust all available administrative remedies before bringing a 1983 claim for cruel and unusual punishment, but there are exceptions to this requirement.



The law firm charges for its time including for consultations.  To arrange a consultation, you must prepay $400 which will cover up to 1 hour of attorney time, and does NOT GUARANTEE that the law firm will represent the inmate or accept a prisoner’s case.  

Thomas H Roberts & Associates, PC
105 S 1st Street
Richmond, Virginia 23219


The materials are prepared for information purposes only.  The materials are not legal advice.  You should not act upon the information without seeking the advice of an attorney.  Nothing herein creates an attorney-client relationship.


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