An inmate said to be mentally ill and who cannot speak English has been held in solitary confinement in a Virginia prison for 12½ years, alleges a federal suit filed on his behalf Tuesday.
Nicolas Reyes is a native of El Salvador and cannot read or write in any language, said his lawyers with the ACLU of Virginia and the Roderick & Solange MacArthur Justice Center. Reyes is being held at the Red Onion State Prison in Wise County, the state’s most secure facility.
The 60-page complaint alleges that “Mr. Reyes’ mental health has deteriorated greatly over the course of his solitary confinement, and he now suffers from depression and disordered thinking. At times he has been unable even to identify the prison where he is held. He experiences routine, vivid hallucinations, in which he communicates with his dead parents.”
The suit was filed against Virginia Department of Corrections officials, employees and a contractor. It alleges violations of Reyes’ constitutional rights and federal protections under the Americans with Disabilities Act and asks that he be removed from solitary confinement and given adequate mental health treatment. The lawsuit seeks unspecified punitive damages.
A spokeswoman for the Virginia Department of Corrections said she had not seen the complaint, which was filed late Tuesday. She added that the department generally does not comment on pending litigation. A spokesman for the attorney general’s office also had not seen the suit and referred questions to the Department of Corrections.
Court records show that Reyes, 47, was sentenced in Alexandria Circuit Court to a total of 47 years for the first-degree murder of his live-in girlfriend in 1991. He fled to Miami and was not arrested until 2000.
The DOC denies that it uses solitary confinement but said that inmates can be moved for disciplinary reasons “to restrictive housing or general detention — which has to be reviewed within 72 hours — if they pose an immediate threat to the safety of inmates and/or staff.”
Officials said previously that seriously mentally ill offenders spend no more than 30 days in restrictive housing and that fewer than 100 inmates at Red Onion State Prison are held in what is called “long-term restrictive housing.” Among other things, those inmates have out-of-cell recreation and classes as well as access to reading material and telephones, the department said.
Corrections officials said inmates can work their way out of restrictive housing via the Administrative Segregation Step Down Program, which has cut the number of offenders in long-term restrictive housing at Red Onion from more than 500 in 2011 to fewer than 100.
The ACLU contends that Reyes’ case proves the department’s contentions are wrong: Reyes is in solitary confinement; he is mentally ill; and he has no way to work his way out of solitary.
“He does not speak English and the step-down program is only accessible to people who speak English, and he cannot read or write. ... Officials at Red Onion know this and despite that they have been not making any accommodations and not allowing him to progress and this has been happening for years now,” said Vishal Agraharkar, with the ACLU.
The suit said the department’s own records repeatedly show that Reyes is not a threat to safety at the prison. Instead, many of his 90-day reviews indicate he is not progressing in the program because he is not participating.
“Mr. Reyes cannot understand let alone participate in these reviews due to defendants’ failure to accommodate his limited English proficiency, his inability to read and write, and his mental health limitations,” the suit alleges.
His lawyers contend that because he is denied the translation services he needs, he cannot get meaningful access to mental health services or work his way out of solitary.
According to the suit, Reyes was placed in solitary confinement for a year starting in June 2001 at Red Onion. “During that time he was twice placed on suicide precautions and exhibited unusual and bizarre behavior including hollering, screaming, and dancing around his cell.”
In 2003 he was placed in general population at Wallens Ridge State Prison. But Reyes was sent back to Red Onion and placed in solitary in 2006 after he was involved in a fight — his lawyers say defending himself — with his cellmate.
In 2009, prior to the start of the step-down program, Reyes was moved to “progressive housing,” to help him transition out of solitary. However, the suit claims that after four months Reyes expressed fear about having another cellmate and he was moved back to solitary.
Maggie E. Filler, with the MacArthur Justice Center, said they learned about Reyes from other Red Onion prisoners who were concerned about him.
“This is really a horrific example of what can happen when you have a system of solitary confinement,” she said.
Among other things, Reyes’ situation demonstrates how the step-down program can be used to block people from leaving solitary, Filler said. Reyes, she said, has not had any disciplinary infractions for the past three years.
“In the early part of this year and in the summer they started to have Mr. Reyes participate in the step-down program but he does not even understand what it is. It is his understanding that it is an English class and that he needed to learn English in order to get out of solitary confinement,” Filler said.
The suit alleges that, “Most days he does not step outside of his small concrete cell.” The cell is described as half the size of a parking space, furnished only with a toilet, sink, a steel table and bed and no chair. The fluorescent lights in his cell dim but do not turn off at night.
His lawyers said they think he has a radio and has had a television in his cell for the past two to three months.
A solid steel cell door masks all sound except the voices of those in cells directly beside and below him — none of them occupied by Spanish speakers. “His isolation and lack of social interaction is near absolute,” alleges the suit. When he entered solitary confinement he weighed 186 pounds, and now he weighs 138 pounds.
The lawsuit alleges that officers regularly refuse to accompany Reyes to recreation cages and that in 2017 he was taken out for recreation only three times.
While policy allows showers no more than three times a week, Reyes is routinely denied the opportunity and last year only showered a handful of times, according to the suit.
“Just from the record that we’ve reviewed, there is striking evidence that Mr. Reyes has, at times, been very seriously mentally ill while in solitary confinement,” Filler said.
Reyes’ lawyers say his language limitations have been a barrier to adequately communicating with mental health personnel. Officials have at various time classified him as having mental health issues and not having them, according to the suit.
The suit alleges that in 2007 a mental health professional evaluated Reyes because he had not eaten in eight days. The evaluator — who noted communication with Reyes was difficult — recorded that Reyes had strong body odor, was crying and that he showed indicators of psychosis.
“Over the next decade, Mr. Reyes continued to exhibit indicators of a serious psychosis, but the mental health staff charged with his care failed to take reasonable measures to address his decline,” the suit charges.
A psychiatrist who examined Reyes because he had lost 20 pounds and was not eating said that Reyes exhibited signs of paranoia and anxiety, according to the suit.
He is now being medicated and as a result sleeps during the day. “At other times, Mr. Reyes rants and raves inside his cell, sings gospel songs, and is the target of harassment and malign neglect from correctional officers,” the suit contends.
“Our position is that Mr. Reyes requires a serious, comprehensive evaluation to determine if there is an underlying mental illness,” Filler said, “and [we] believe he needs to be out of this setting, which is toxic to his mental health.”