THOMAS ALEXANDER PORTER; ANTHONY BERNARD JUNIPER; MARK LAWLOR; RICKY JOVAN GRAY, Plaintiffs - Appellants,
HAROLD W. CLARKE; DAVID ZOOK, Defendants-Appellees. and IVAN TELEGUZ, Plaintiff, THOMAS ALEXANDER PORTER; ANTHONY BERNARD JUNIPER; MARK LAWLOR; RICKY JOVAN GRAY,
Argued: January 25, 2017
from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema,
District Judge. (1:14-cv-01588-LMB-IDD)
Kathryn Marshall Ali, HOGAN LOVELLS U.S. LLP, Washington,
D.C.; Victor M. Glasberg, VICTOR M. GLASBERG &
ASSOCIATES, Alexandria, Virginia, for Appellants.
Margaret Hoehl O'Shea, OFFICE OF THE ATTORNEY GENERAL OF
VIRGINIA, Richmond, Virginia, for Appellees.
Elizabeth C. Lockwood, W. David Maxwell, Ryan Stephenson,
Washington, D.C., Parker D. Thomson, HOGAN LOVELLS U.S. LLP,
Miami, Florida; Steven D. Rosenfield, Jeffrey E. Fogel,
Charlottesville, Virginia, for Appellants. Mark R. Herring,
Attorney General of Virginia, OFFICE OF THE ATTORNEY GENERAL
OF VIRGINIA, Richmond, Virginia, for Appellees.
W. DeBruin, Carrie F. Apfel, Kelly M. Morrison, Washington,
D.C., Jeffrey A. Atteberry, JENNER & BLOCK, LLP, Los
Angeles, California, for Amici The American Civil Liberties
Union Foundation of Virginia, Inc. and The Rutherford
Institute. Hope R. Amezquita, AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF VIRGINIA, INC., Richmond, Virginia, for Amicus
The American Civil Liberties Union Foundation of Virginia,
Inc. John W. Whitehead, Doug R. McKusick, THE RUTHERFORD
INSTITUTE, Charlottesville, Virginia, for Amicus The
NIEMEYER, TRAXLER, and WYNN, Circuit Judges.
and remanded by published opinion. Judge Wynn wrote the
opinion, in which Judge Niemeyer and Judge Traxler joined.
Thomas Porter, Anthony Juniper, and Mark Lawlor (collectively,
"Plaintiffs")-three inmates on Virginia's death
row-alleged that their conditions of confinement amounted to
cruel and unusual punishment in violation of the Eighth
Amendment. After Plaintiffs filed their complaint, Defendants
Harold Clarke, Director of the Virginia Department of
Corrections ("Director Clarke"), and Darren Zook,
Warden of Sussex I State Prison ("Warden Zook, "
and collectively with Director Clarke,
"Defendants"), substantially changed the policies
governing the conditions of confinement for inmates on
Virginia's death row, addressing virtually all of the
issues raised in Plaintiffs' complaint. The district
court concluded that Defendants' changes to the
challenged policies mooted Plaintiffs' action.
Plaintiffs contend, Defendants' voluntary cessation of
the challenged practice has not yet mooted this action
because Defendants failed to meet the Supreme Court's
requirement of showing that "it is absolutely clear the
allegedly wrongful behavior could not reasonably be expected
to recur." Friends of the Earth, Inc. v. Laidlaw
Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190 (2000).
Indeed, Defendants repeatedly have refused to rule out a
return to the challenged ...