Working to End Cruel and Unusual Punishment in Virginia correctional institutionsThomas Porter v. Harold Clarke (amicus curiae).

The plaintiffs-appellants are prisoners on death row in the Virginia Department of Corrections (“VDOC”). They have suffered extremely harsh conditions, including solitary confinement for 23 hours a day, cells measuring 71 square feet with no meaningful window, and no contact visitation with family. The District Court refused to rule on the constitutionality of these policies and, instead, dismissed the case as moot because VDOC made temporary changes to its policies in the middle of the litigation. In so doing, the District Court has made it easier for VDOC and future civil rights defendants to avoid adverse rulings by simply modifying their behavior after litigation has begun – a defense ploy known as tactical mooting. The threat of tactical mooting and the corresponding erosion of private enforcement of civil rights are real. We filed an amicus condemning the harsh conditions as well as explaining how the District Court’s opinion failed to apply the strict mootness standard mandated by the Supreme Court and this Court and, accordingly, requested that the lower court opinion be reversed.

Oral arguments were scheduled for January 25, 2017. The Fourth Circuit Court of Appeals issued an opinion on March 24, 2017, reversing and remanding the decision of the district court. The Fourth Circuit held that the district court erred in dismissing the Plaintiffs’ action as moot stating that VDOC retains the authority and capacity to reverse back to unconstitutional conditions of solitary confinement and would not promise not to resume the prior practices that resulted in the filing of the lawsuit.

On September 22, 2017, we filed an amicus brief in support of Porter in the Eastern District of Virginia.  On September 30, 2017, a hearing was conducted on cross motions for summary judgment on the same legal issues. On February 21, 2018 the Court granted Plaintiffs' Motion for Summary Judgement and granted an injunction preventing the Defendants from returning to unconstitutional conditions of confinement.

On May 3, 2019 the 4th Circuit issued an opinion affirming the district court decision finding deliberate indifference by Virginia officials. 



ACLU of Virginia; John W. Whitehead and Doug R. McKusick, The Rutherford Institute

Pro Bono Law Firm(s)

David W. DeBruin, Carrie F. Apfel, and Kelly M. Morrison, Jenner & Block LLP, Washington, DC; Jeffrey A. Atteberry, Jenner & Block LLP, Los Angeles CA

Date filed

September 20, 2016


U.S. District Court of Virginia, Eastern District, Alexandria Division