Alfredo Prieto v. Harold Clarke

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-8021
ALFREDO PRIETO,
Plaintiff - Appellee,
v.
HAROLD CLARKE, Director; A. DAVID ROBINSON, Deputy Director;
E. PEARSON, Warden,
Defendants - Appellants.
-------------------------
TONI V. BAIR; F. WARREN BENTON; KATHLEEN M. DENNEHY; BRIAN
JASON FISCHER; MARTIN F. HORN; STEVE J. MARTIN; CHASE
RIVELAND; REGINALD A. WILKINSON; JEANNE WOODFORD,
Amici Supporting Appellee.
No. 14-6226
ALFREDO PRIETO,
Plaintiff - Appellee,
v.
HAROLD CLARKE, Director; A. DAVID ROBINSON, Deputy Director;
E. PEARSON, Warden,
Defendants - Appellants.
-------------------------
TONI V. BAIR; F. WARREN BENTON; KATHLEEN M. DENNEHY; BRIAN
JASON FISCHER; MARTIN F. HORN; STEVE J. MARTIN; CHASE
RIVELAND; REGINALD A. WILKINSON; JEANNE WOODFORD,
Amici Supporting Appellee.
Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema,
District Judge. (1:12-cv-01199-LMB-IDD)
Argued: October 28, 2014 Decided: March 10, 2015
Before MOTZ, SHEDD, and WYNN, Circuit Judges.
Reversed by published opinion. Judge Motz wrote the majority
opinion, in which Judge Shedd joined. Judge Wynn wrote a
dissenting opinion.
ARGUED: Stuart Alan Raphael, OFFICE OF THE ATTORNEY GENERAL OF
VIRGINIA, Richmond, Virginia, for Appellants. Michael E. Bern,
LATHAM & WATKINS LLP, Washington, D.C., for Appellee. ON BRIEF:
Mark R. Herring, Attorney General of Virginia, Cynthia E.
Hudson, Chief Deputy Attorney General, Linda L. Bryant, Deputy
Attorney General, Public Safety & Enforcement, Richard C.
Vorhis, Senior Assistant Attorney General, Kate E. Dwyre,
Assistant Attorney General, Trevor S. Cox, Deputy Solicitor
General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond,
Virginia, for Appellants. Abid R. Qureshi, Katherine M.
Gigliotti, Daniel I. Levy, LATHAM & WATKINS LLP, Washington,
D.C., for Appellee. Rebecca K. Glenberg, Hope R. Amezquita,
AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF VIRGINIA, Richmond,
Virginia; Amy Fettig, Helen Vera, AMERICAN CIVIL LIBERTIES UNION
NATIONAL PRISON PROJECT, Washington, D.C., for Amici Curiae.
2
DIANA GRIBBON MOTZ, Circuit Judge:
The district court held that the procedural Due Process
rights of a capital prisoner were violated by a state policy
requiring his confinement, prior to execution, in a single cell
with minimal visitation and recreation opportunities. The court
ordered state officials either to alter the policy or to improve
these conditions. The officials appeal and, for the reasons
that follow, we reverse.
I.
Upon conviction for two capital murders and receipt of two
death sentences, Alfredo Prieto was incarcerated by the
Commonwealth of Virginia at Sussex I State Prison in Waverly,
Virginia. Prieto is one of eight Virginia convicts imprisoned
after receipt of the death penalty. All eight capital offenders
are housed in the same portion of Sussex I, known widely as
Virginia’s “death row.” Appellant’s Br. 11-13.
A written state policy mandates that all persons sentenced
to death in Virginia be confined on death row while awaiting
execution. See Virginia Dep’t. of Corr. Operating Procedure
830.2(D)(7), 460.1A (I). Unlike other prisoners, these
prisoners are not subject to security classification or
assignment to any alternative confinement. Id. Inmates on
death row live in separate single cells, with visitation and
3
recreation restrictions more onerous than those imposed on other
inmates.
After incarceration on Virginia’s death row for nearly six
years as he pursued post-conviction challenges, Prieto brought
this 42 U.S.C. § 1983 action pro se. He alleged that his
confinement on death row violated his procedural Due Process and
Eighth Amendment rights and sought injunctive relief. The
district court dismissed the Eighth Amendment claim but found
that Prieto had stated a plausible Due Process claim and
appointed counsel for him. 1 Following discovery, the parties
filed cross motions for summary judgment.
The district court granted Prieto’s motion. The court
noted that the conditions on Virginia’s death row were “eerily
reminiscent” of those held in Wilkinson v. Austin, 545 U.S. 209(2005), to implicate a liberty interest protected by the Due
Process Clause. See Prieto v. Clarke, No. 12-1199, 2013 WL
6019215, at *6 (E.D. Va. Nov. 12, 2013). Reasoning that because
these conditions were “uniquely severe” and pervasive compared
to the conditions of the general prison population, the court
concluded that Prieto had established a Due Process liberty
interest in avoiding them and that Prieto’s automatic and
1
Prieto initially appealed the district court’s dismissal
of his Eighth Amendment claim, but we dismissed the appeal for
failure to prosecute and Prieto does not challenge that decision
in the present appeal.
4
permanent assignment to death row did not afford him
constitutionally adequate process. Id. at *7-8.
The district court then issued an injunction ordering
Virginia prison officials either to “improve [Prieto]’s
conditions of confinement” or provide Prieto with “an
individualized classification determination” for his prison
housing, like the classification procedure afforded by state law
to non-capital offenders. Id. In a subsequent order, the court
awarded Prieto all costs and attorney’s fees. The prison
officials appeal both orders; we consolidated the cases on
appeal.
II.
The Due Process Clause of the Fourteenth Amendment provides
that no state shall “deprive any person of life, liberty, or
property, without due process of law.” U.S. Const. amend. XIV.
To state a procedural due process violation, a plaintiff must
(1) identify a protected liberty or property interest and (2)
demonstrate deprivation of that interest without due process of
law. Because we conclude that Prieto cannot establish a
protected liberty interest, we need not consider the
sufficiency-of-process requirement.
The Supreme Court has long recognized that a prisoner may
have a state-created liberty interest in certain prison
5
confinement conditions, entitling him to procedural Due Process
protections. See, e.g., Meachum v. Fano, 427 U.S. 215 (1976);
Wolff v. McDonnell, 418 U.S. 539 (1974). 2 But the Court has been
equally clear that if no state statute, regulation, or policy
creates such a liberty interest, a prisoner cannot “invoke the
procedural protections of the Due Process Clause.” Meachum, 427
U.S. at 224. And the Court has expressly “reject[ed] . . . the
notion that any grievous loss visited upon a person by the State
is sufficient” to require constitutionally adequate procedure.
Id.In the late 70s and early 80s the Court broadly defined
state-created interests, holding that any mandatory state
directive created a state law liberty interest triggering
procedural Due Process protections. See, e.g., Hewitt v. Helms,
459 U.S. 460 (1983); Greenholtz v. Inmates of Neb. Penal and
Corr. Complex, 442 U.S. 1 (1979). In an effort to eliminate the
2
The Court has also held that such a liberty interest can
arise from the Constitution itself but only rarely has
recognized such an interest. See, e.g., Vitek v. Jones, 445
U.S. 480, 493-494 (1980) (recognizing liberty interest in
avoiding involuntary psychiatric treatment and transfer to
mental institution). For the first time on appeal, Prieto
contends that the Constitution standing alone provides a liberty
interest entitling him to relief. Even if he had preserved this
argument, it would be meritless. See Sandin v. Conner, 515 U.S.
472, 480 (1995) (“The Due Process Clause standing alone confers
no liberty interest in freedom from state action taken within
the sentence imposed.” (internal quotations and citation
omitted)).
6
resultant “[p]arsing” of state statutes to find rights by
“negative implication,” the Court corrected course in Sandin v.
Conner, 515 U.S. 472, 481-82 (1995). There it added a second
requirement for establishing a liberty interest warranting
constitutionally adequate process. Sandin holds that, while a
state statute or policy may “create liberty interests” giving
rise to Due Process protection, this is so only if the denial of
such an interest “imposes atypical and significant hardship on
the inmate in relation to the ordinary incidents of prison
life.” Id. at 484.
A decade later, in Wilkinson v. Austin, 545 U.S. 209(2005), the Court applied this “two-part analysis.” 3 Wilkinson
expressly reaffirmed that in determining if a prisoner has
established a state-created liberty interest in certain
conditions of confinement, the “threshold question” is whether
such an interest “arise[s] from state policies or regulations.”
Id. at 221-22. The Court then reiterated that even if state
policies could be read to create such an interest, to garner the
protection of the Due Process Clause an inmate must also
3
The Second Circuit has so dubbed and then applied this
analysis first established in Sandin. See Tellier v. Fields,
280 F.3d 69, 80 (2d Cir. 2000). Contra Chappell v. Mandeville,
706 F.3d 1052, 1064 (9th Cir. 2013) (bypassing the first prong
in this two-part analysis); but see id. at 1065-66 (Graham, J.,
concurring in the judgment) (labeling majority’s departure from
this “two-part inquiry” a “radical change in due process
jurisprudence”).
7
establish that “the nature of [the] conditions themselves, ‘in
relation to the ordinary incidents of prison life,’” impose “an
atypical and significant hardship.” Id. at 223 (quoting Sandin,
515 U.S. at 484).
When the Wilkinson Court applied this two-prong analysis,
the parties agreed as to the first prong. That is, the State
and the inmates agreed on the “threshold question,” that written
Ohio prison classification regulations controlled the prison
assignment, and so confinement conditions, of all inmates. Id.
at 215-17, 221. The Wilkinson Court thus focused on the second
prong: whether these regulations created a “liberty interest in
avoiding restrictive conditions of confinement.” Id. at 223.
Reiterating Sandin’s teaching, Wilkinson noted that the
“touchstone of th[is] inquiry . . . is not the language of the
regulations regarding those conditions,” but whether their
application imposed “atypical and significant hardship . . . in
relation to the ordinary incidents of prison life.” Id.
(quoting Sandin, 515 U.S. at 484) (internal quotation marks
omitted). Assignment to and confinement at the supermax was
found to constitute an “atypical and significant hardship,”
because all other prisons in which the inmates could have been
housed under Ohio’s classification regulations had markedly
less-onerous confinement conditions. See id. at 223-24. And,
for this reason, the Court concluded that “under any plausible
8
baseline,” the harsh conditions at the supermax “g[a]ve rise to
a liberty interest in their avoidance.” Id. at 223-24. 4
Prieto properly recognizes the importance of Sandin and
Wilkinson to his challenge. But his analysis, which the
district court adopted, rests on interrelated, critical
misunderstandings of those cases. Prieto treats Sandin and
Wilkinson as establishing a new regime in which atypical and
harsh confinement conditions, in and of themselves, give rise to
a protected liberty interest, regardless of whether any state
law or policy creates the possibility of avoiding such
conditions. Moreover, Prieto fails to recognize that he cannot
satisfy either of the two requirements for a protected, state-
created liberty interest specified in Sandin and Wilkinson. We
address these issues in turn.
III.
We begin with Prieto’s apparent belief that Sandin and
Wilkinson hold that atypical and harsh confinement conditions,
standing alone, can give rise to a state-created liberty
interest. Noting that Wilkinson held that the conditions at the
Ohio supermax imposed an atypical hardship under “any plausible
4
Wilkinson went on to hold that a new Ohio law provided the
inmates with constitutionally sufficient process. Wilkinson,
545 U.S. at 228-29.
9
baseline,” 545 U.S. at 223, Prieto asserts that because the
conditions on Virginia’s death row are just as harsh as those in
Wilkinson, he too must have a liberty interest. But the view
that prison conditions, simply by virtue of their severity, give
rise to a protected liberty interest misreads Sandin, Wilkinson,
and the cases that preceded them, and overlooks our binding
circuit precedent.
Prieto reads Sandin as “abandon[ing]” the Supreme Court’s
prior teaching in Meachum that a plaintiff must point to a state
statute, regulation or policy in order to “establish a liberty
interest.” Appellee’s Br. 17. But the Sandin Court did no such
thing. Rather, in Sandin, the Court expressly embraced this
portion of Meachum, noting that “[t]he time ha[d] come to return
to the due process principles . . . correctly established in
. . . Meachum.” Sandin, 515 U.S. at 483. What the Sandin Court
did do was reject some dicta in Meachum suggesting that any
mandatory language in a regulation “created an absolute right to
. . . certain substantive procedures.” Id. at 481. Because not
all such policies are “designed to confer rights on inmates,”
id. at 482, Sandin added an additional showing necessary to
establish a protected liberty interest. Id. at 482. After
finding a basis for an interest or expectation in state
regulations, an inmate must then demonstrate that denial of this
10
state-created interest resulted in an “atypical and significant
hardship” to him. Id. at 484.
Prieto, now joined by our friend in dissent, also misreads
Wilkinson. For Wilkinson does not hold that harsh or atypical
prison conditions in and of themselves provide the basis of a
liberty interest giving rise to Due Process protection. Rather,
it was “the inmates’ interest in avoiding” erroneous placement
at the supermax under the state’s classification regulations
combined with these harsh and atypical conditions that triggered
Due Process protections. Wilkinson, 545 U.S. at 224-25. The
Wilkinson Court simply applied the two-prong approach
established in Sandin. Thus Wilkinson neither eliminates the
first prong nor implies that the “nature of th[e] conditions”
alone establishes a protected liberty interest. 5 Id. at 223.
Moreover, Prieto ignores our own binding precedent
rejecting his approach. In Lovelace v. Lee, 472 F.3d 174, 202
(4th Cir. 2006), we expressly recognized that Wilkinson requires
a prisoner seeking to bring a procedural due process claim to
satisfy the two-prong test. Relying on Wilkinson, we held that
5
If Prieto’s reading of Sandin and Wilkinson were correct,
a state would “create” a liberty interest simply by imposing
harsh confinement conditions. This outcome would not bring the
Court’s precedent in line with Meachum, as Sandin sought to do.
Rather, it would reject the express teaching in Meachum that a
state-created liberty interest does not arise simply from
“conditions of confinement having a substantial adverse impact
on the prisoner.” 427 U.S. at 224.
11
to demonstrate a liberty interest meriting procedural due
process protection, a prisoner must show (1) denial of “an
interest that can arise either from the Constitution itself or
from state laws or policies,” and that (2) “this denial imposed
on him an ‘atypical and significant hardship . . . in relation
to the ordinary incidents of prison life.’” Lovelace, 472 F.3d
at 202 (quoting Sandin, 515 U.S. at 484). Even more recently we
reaffirmed the necessity of the first prong. See Burnette v.
Fahey, 687 F.3d 171, 181 (4th Cir. 2012) (explaining that a
“liberty interest may arise . . . from an expectation or
interest created by state laws or policies” (internal quotation
marks and citation omitted)). 6
In addition to espousing a theory contrary to Sandin,
Wilkinson, and our binding circuit precedent in Lovelace and
Burnette, Prieto’s approach would collapse a prison conditions
6
Contrary to Prieto’s contention, a recent Fifth Circuit
case lends him no support. See Wilkerson v. Goodwin, 774 F.3d
845 (5th Cir. 2014). There, the court held that an inmate’s
almost forty-year incarceration in solitary confinement,
assertedly in violation of a state classification system, gave
rise to a liberty interest protected by due process. Id. at
851-57. Prieto points out that the court recognized that the
existence of a state-created interest turns on the nature of the
deprivation “resulting from a state regulation,” rather than the
“language of the regulation.” Id. at 852 (quotation marks and
citation omitted). Yes, but in so concluding, the Fifth Circuit
expressly acknowledged, as we hold, that to give rise to a due
process challenge, a deprivation must “result[] from” the
alleged violation of a state regulation. Id. Unlike Wilkerson,
Prieto can point to no deprivation resulting from the violation
of a state regulation.
12
Due Process claim into an Eighth Amendment claim. The Eighth
Amendment’s prohibition on cruel and unusual punishment
“appl[ies] when the conditions of confinement compose the
punishment at issue.” Rhodes v. Chapman, 452 U.S. 337, 347
(1981). Allegations that prison conditions “involve the wanton
and unnecessary infliction of pain,” or are “grossly
disproportionate to the severity of the crime,” or are “without
any penological purpose” fall squarely within the ambit of the
Eighth Amendment -- not the Due Process Clause. Id. The Eighth
Amendment requires a court to examine whether prison conditions
impose cruel and unusual punishment. The Due Process clause
requires a court to determine whether a state has provided
prisoners with adequate process in applying prison regulations
and policies. Treating Sandin and Wilkinson as holding that
confinement conditions alone trigger a Due Process claim --
without regard to whether a state policy or regulation provides
the basis to challenge such conditions -- would elide that
critical distinction.
Prieto thus errs in contending that harsh and atypical
confinement conditions in and of themselves give rise to a
liberty interest in their avoidance. 7
7
Prieto’s contention that Virginia officials waived the
argument that he must point to an entitlement in state
regulations or statutes to establish a Due Process claim is
(Continued)
13
IV.
Of course, regardless of this initial error, Prieto could
still establish a basis for Due Process protection. To do so,
he would need to point to a Virginia law or policy providing him
with an expectation of avoiding the conditions of his
confinement and demonstrate that those conditions are harsh and
atypical in relation to the ordinary incidents of prison life.
Prieto does neither.
A.
The record is clear that under Virginia law, a capital
offender has no expectation or interest in avoiding confinement
on death row. A written Virginia policy requires all capital
offenders to be housed on death row prior to execution, without
any possibility of reclassification. See Virginia Dep’t of
Corr. Operating Procedure 830.2(D)(7) (“Any offender sentenced
meritless. The officials contended before the district court,
albeit briefly, that a liberty interest must be “created by
state laws or policies” and that Prieto could not establish a
right to reclassification because one does not exist under state
law. Defs’ Mem. in Supp. of Mot. Summ. J. 8, ECF No. 80; Defs’
Resp. to Pls’ Mot. Summ. J. 6, ECF No. 81. The district court
clearly understood and indeed stated that the “sole issue”
before it was whether Prieto’s “automatic and permanent”
placement in the restrictive conditions of confinement present
in Virginia’s death row violates Prieto’s Fourteenth Amendment
due process rights, and that this analysis required an initial
determination of “whether a liberty interest exists.” Prieto,
2013 WL 6019215, at *4.
14
to Death will be assigned directly to Death Row . . . . No
reclassification will be completed.”).
This state policy forecloses any Due Process expectation or
right on the part of Virginia capital offenders to any other
housing assignment. For the corollary to the requirement that a
state-created liberty interest must be anchored in a state
policy is that when a state policy expressly and unambiguously
disclaims a particular expectation, an inmate cannot allege a
liberty interest in that expectation. That is, a court cannot
conclude that death row inmates have a state-created interest in
consideration for non-solitary confinement when the State’s
established written policy expressly precludes such
consideration.
Prieto apparently regards the written Virginia policy as
being of no moment, but in fact that policy eliminates his
procedural Due Process claim.
B.
Nor can Prieto establish that the conditions of his
confinement impose an atypical and significant hardship in
relation to the ordinary incidents of prison life. 8 Prieto
8
Of course, a court need only reach the atypicality
question if an inmate has been deprived of a state-created
liberty interest. Here there has been no deprivation, because
there is no state-created liberty interest. Nevertheless, we
(Continued)
15
recognizes, as he must, that the Supreme Court has yet to
identify the baseline for determining whether a state regulation
imposes such an atypical and significant hardship. But he
raises several arguments in support of his view that the
conditions of his confinement on death row satisfy the
atypicality requirement.
Citing Beverati v. Smith, 120 F.3d 500, 504 (4th Cir.
1997), Prieto asserts that this court has “long explained that
the ordinary incidents of prison life are established by the
conditions imposed on the general prison population.”
Appellee’s Br. 27. Prieto also contends that his conditions of
confinement on death row impose an atypical hardship “relative
to ordinary prison conditions” in other Virginia prisons. Id.And he argues at length that his confinement conditions “mirror”
those in Wilkinson, and thus must impose an atypical and
significant hardship “under any plausible baseline.” Id. at 22
(quoting Wilkinson, 545 U.S. at 223); see also id. at 16, 23-27.
Prieto is wrong on all counts. First, neither in Beverati
nor elsewhere have we indicated that in all cases, the relevant
atypicality baseline is the “general prison population.”
Beverati involved inmates initially subjected to thirty days of
address the atypicality inquiry because it is Prieto’s principal
contention and was the basis for the district court’s holding.
16
disciplinary segregation but thereafter retained in segregation
for six more months. Beverati, 120 F.3d at 501-02. Only with
respect to those inmates in disciplinary segregation, whose
conditions of confinement were set by Maryland (not Virginia)
law, did we describe the baseline as the conditions those
particular inmates could expect to “experience as an ordinary
incident of prison life.” Id. at 503. What the inmates in
Beverati could expect to experience and what Prieto can expect
to experience differ significantly. It should come as no
surprise that the baseline does, too. Moreover, we have never
interpreted Beverati to establish the rule Prieto suggests.
Rather, we have, as Sandin instructed, stressed that the
atypicality baseline should be determined “‘in relation to the
ordinary incidents of prison life.’” Lovelace, 472 F.3d at 202(quoting Sandin, 515 U.S. at 484). Beverati simply does not
stand for the broad proposition Prieto would like it to.
Second, as to Prieto’s argument that the proper baseline
for assessing his conditions of confinement are the “ordinary
prison conditions” in the state’s prisons, Wilkinson is
instructive. None of the parties in Wilkinson even suggested
that “ordinary prison conditions” in other Ohio prisons provided
the proper baseline for the dangerous offenders assigned to the
supermax. At oral argument in Wilkinson, counsel for both Ohio
and the inmates acknowledged that they had clashed in the lower
17
courts as to the appropriate baseline for determining
atypicality. But no party contended that the “ordinary prison
conditions” of the general prison population constituted the
appropriate baseline for assessing the confinement conditions of
those dangerous prisoner plaintiffs. See generally Transcript
of Oral Argument, Wilkinson v. Austin, 545 U.S. 209 (2005) (No.
04-495). 9
Further, neither Wilkinson nor Beverati involved a discrete
class of inmates who had been sentenced to death and for that
reason were required by state law to be confined under
particular conditions. 10 Rather, Wilkinson and Beverati found
confinement conditions that were not required by a particular
conviction and sentence to impose an atypical and significant
9
Ohio suggested that the baseline be the security
classification just below that which renders Ohio prisoners
eligible for housing at the supermax. The inmates argued that
the baseline should be segregated confinement units at other
Ohio prisons. See Transcript at 6-7, 52.
10
Contrary to our dissenting colleague’s suggestion,
confinement of the inmates in Wilkinson to the supermax was not
the “automatic[]” result “of being convicted of certain
offenses.” Conviction of certain egregious crimes did result in
automatic consideration for assignment to the supermax, but not
automatic confinement there. Wilkinson, 545 U.S. at 216. In
stark contrast to the case at hand, in Wilkinson a detailed
written state policy governed assignment in every case. That
policy set forth a highly individualized assignment procedure
“based on numerous factors (e.g., the nature of the underlying
offense, criminal history, or gang affiliation) but [] subject
to modification at any time during the inmate’s prison term.”
Id. at 215.
18
hardship. These holdings certainly do not mean that similar
conditions pose an atypical and significant hardship where, as
here, state law does mandate that a particular conviction and
sentence require confinement under such conditions.
When determining the baseline for atypicality, a court must
consider whether the confinement conditions are imposed on a
prisoner because of his conviction and sentence. For conditions
dictated by a prisoner’s conviction and sentence are the
conditions constituting the “ordinary incidents of prison life”
for that prisoner. Sandin, 515 U.S. at 484; Lovelace, 472 F.3d
at 202; Beverati, 120 F.3d at 502-03. As the Tenth Circuit
recently explained, conditions “will differ depending on a
particular inmate’s conviction and the nature of nonpunitive
confinement routinely imposed on inmates serving comparable
sentences.” Rezaq v. Nalley, 677 F.3d 1001, 1012 (10th Cir.
2012).
We do not hold, or even suggest, that differences in the
nature of a conviction or the length of a sentence give rise to
different liberty interests. Rather, we simply recognize, as we
must, that in the unusual instances in which state law mandates
the confinement conditions to be imposed on offenders convicted
of a certain crime and receiving a certain sentence, those
confinement conditions are, by definition, the “ordinary
incidents of prison life” for such offenders. Virginia law
19
mandates that all persons convicted of capital crimes are, upon
receipt of a death sentence, automatically confined to death
row. Thus, in Virginia the ordinary incidents of prison life
for those inmates, including Prieto, include housing on death
row.
This conclusion follows from the importance the Supreme
Court has attached to the sentence of conviction in assessing
possible Due Process violations. In Meachum, the Court rejected
the contention that “burdensome conditions” imposed by transfer
to a maximum security facility provided the basis for a Due
Process claim because those conditions fell “within the normal
limits or range of custody which the conviction has authorized
the State to impose.” Meachum, 427 U.S. at 225 (emphasis added)
(quoted with approval in Sandin, 515 U.S. at 478). Similarly,
in rejecting a prisoner’s Due Process claim, the Sandin Court
found significant the fact that the challenged confinement
conditions fell “within the expected perimeters of the sentence
imposed.” Sandin, 515 U.S. at 485 (emphasis added). As the
Court explained in Sandin and repeated in Wilkinson, a prisoner
does not establish a state-created liberty interest in avoiding
disciplinary segregated confinement if such confinement “does
not present a dramatic departure from the basic conditions of
[the inmate’s] indeterminate sentence.” Id. (emphasis added);
Wilkinson, 545 U.S. at 223.
20
Prieto, like any other inmate, can only be deprived of that
to which he is entitled. Thus, in determining whether a
deprivation imposes a significant or atypical hardship on him,
the court must use as its benchmark the incidents of prison life
to which he is entitled. Virginia imposes death row confinement
on capital offenders because of the crime they have committed
and the sentence they have received. That confinement is the
expected -- indeed mandated -- confinement condition flowing
from the conviction and sentence. State law defines the
perimeters of confinement conditions, and here state law is
pellucid: tethered to the death sentence in Virginia is pre-
execution confinement on death row.
V.
We do not in any way minimize the harshness of Virginia’s
regime. Prieto’s conditions of confinement are undeniably
severe. Indeed, the district court, perhaps correctly,
described the isolation that characterizes Virginia’s death row
as “dehumanizing”. Prieto, 2013 WL 6019215, at *6. 11 But the
11
We note, however, that the conditions on Virginia’s death
row are apparently not altogether unlike those imposed by some
other states on their capital offenders. A study cited by one
of Prieto’s amici, the ACLU, reports as much. See Mark D.
Cunningham & Mark P. Vigen, Death Row Inmate Characteristics,
Adjustment, and Confinement: A Critical Review of the
Literature, 20 Behav. Sci. & L. 191, 204 (2002).
21
Supreme Court has long held, as it did in Wilkinson, that state
correctional officials have broad latitude to set prison
conditions as they see fit since “[p]rison security, imperiled
by the brutal reality of prison gangs, provides the backdrop of
the state’s interest.” 545 U.S. at 227. Recently the Court
emphasized once more that “[t]he difficulties of operating a
detention center must not be underestimated by the courts,” and
that “correctional officials . . . must have substantial
discretion to devise reasonable solutions to the problems they
face.” Florence v. Bd. of Chosen Freeholders, 132 S. Ct. 1510,
1515 (2012).
Of course, the Supreme Court could prescribe more rigorous
judicial review of state statutes and regulations governing
prison confinement conditions. But it has not. Concerned with
eliminating “disincentives for States to ‘codify’ prison
management procedures,” the Sandin Court adopted an approach
that would encourage States to codify their policies regarding
treatment and confinement of inmates. 515 U.S. at 482. This
approach, reaffirmed in Wilkinson, provides inmates and prison
administrators with clear notice of a prisoner’s rights, but it
also permits a given state to codify procedures establishing
very restrictive confinement conditions. The judgment that this
trade-off strikes the correct balance between the dictates of
the Due Process Clause and the pressures on state correctional
22
systems is one that the Supreme Court has made and we cannot
disturb. Of course, the Court may one day alter its approach to
the Due Process Clause. But unless and until the Court retreats
from Sandin and Wilkinson, a procedural Due Process claim like
that offered by Prieto fails.
For the foregoing reasons, we reverse the judgment of the
district court. 12
REVERSED
12
Because 42 U.S.C. § 1988(2) authorizes the award of
attorney’s fees only to a “prevailing party,” we must also
reverse the order awarding costs and attorney’s fees to Prieto.
23
WYNN, Circuit Judge, dissenting:
A unanimous Supreme Court told us in no uncertain terms
that prisoners have a liberty interest in avoiding indefinite,
highly restrictive imprisonment. Wilkinson v. Austin, 545 U.S.
209, 220–21 (2005). And the Supreme Court told us that in
determining whether such a liberty interest exists, we must
focus on the “the nature of those conditions themselves in
relation to the ordinary incidents of prison life.” Id. at 223(quotation marks omitted).
The Supreme Court found the conditions in Wilkinson
sufficiently egregious that “taken together[,] they impose an
atypical and significant hardship within the correctional
context . . . [and thereby] give rise to a liberty interest in
their avoidance.” Id. at 224. In other words, the restrictive
conditions could be imposed—but not without procedural
safeguards such as notice and an opportunity to be heard.
This case presents conditions of confinement strikingly
similar to, and arguably more egregious than, those in
Wilkinson. I would therefore follow Wilkinson and find
Plaintiff Alfred Prieto entitled to at least some modicum of
procedural due process. In my view, the majority opinion reads
Wilkinson unnecessarily narrowly in signing off on Prieto’s
automatic, permanent, and unreviewable placement in the highly
24
restrictive conditions of Virginia’s death row. Accordingly, I
respectfully dissent.
I.
A.
“The Fourteenth Amendment’s Due Process Clause protects
persons against deprivations of life, liberty, or property; and
those who seek to invoke its procedural protection must
establish that one of these interests is at stake.” Id. at 221.
In Wilkinson, the Supreme Court found a prisoner’s liberty
interest at stake and got there by noting that “the touchstone
of the inquiry into the existence of” the liberty interest in
avoiding restrictive conditions of confinement was not the
language of regulations “but the nature of those conditions
themselves in relation to the ordinary incidents of prison
life.” 545 U.S. at 222 (citation and quotation marks omitted).
The centerpiece of the Court’s Wilkinson opinion, therefore, was
an analysis of the conditions themselves.
Nowhere in Wilkinson did the Supreme Court parse the
language of any law or regulation or otherwise suggest that
written words governing the conditions of confinement are the
linchpins to finding a liberty interest. See id. Instead, the
Court analyzed the conditions themselves and then held that
“taken together they impose an atypical and significant hardship
25
within the correctional context. It follows that [the
prisoners] have a liberty interest in avoiding” them. Id. at
224. In other words, the Supreme Court looked not at verbiage
but at the facts on the ground, comparing the conditions at
issue with typical conditions. And finding the conditions at
issue atypically harsh, the Court held that a prisoner subjected
to the conditions is due at least an informal notice and hearing
before he is subjected to them. 1
Several conditions caught the Supreme Court’s eye in
Wilkinson: the solitary nature of the confinement and near
complete prohibition on human contact; the lack of stimuli, with
exercise limited to one hour per day in a small indoor room; the
potentially indefinite period of the placement—with only an
annual review after the initial thirty-day review; and potential
disqualification of inmates otherwise eligible for parole. See
Wilkinson, 545 U.S. at 223-24. The Supreme Court looked at the
totality of the conditions and held that “taken together they
impose an atypical and significant hardship within the
correctional context.” Id. at 224.
1
The Supreme Court did not, however, hold that the
conditions themselves were unconstitutional and needed to be
changed; that would be a separate, Eighth Amendment inquiry.
Nor would I hold so here, not least because, as in Wilkinson,
that is not before us.
26
In this case, the conditions of confinement essentially
mirror those in Wilkinson. Prieto is deprived of almost all
human contact, even cell-to-cell contact with other death row
inmates. His conditions of confinement are largely devoid of
stimuli: He must remain in his small single cell for twenty-
three hours a day, except for one hour five days per week, when
he may exercise in a small enclosure with a concrete floor and
no exercise equipment. And Prieto’s confinement on death row is
indefinite: No opportunity for review of the placement exists.
In some respects, Prieto’s conditions are actually more
restrictive than those in Wilkinson. For example, Prieto’s cell
is smaller than the cells in Wilkinson. Unlike the prisoners in
Wilkinson, Prieto has no opportunity for group programming or
religious services. And Prieto has fewer opportunities for
exercise.
One condition at issue in Wilkinson but absent here is
disqualification for parole. Specifically, inmates otherwise
eligible for parole became ineligible when placed into the
restrictive supermax confinement at issue in Wilkinson. 545
U.S. at 224. But the Supreme Court in no way limited its
holding only to those (few) inmates who would otherwise be
eligible for parole but for their supermax confinement. And I
agree with the Seventh Circuit that any contention that
Wilkinson turned on the (in)eligibility for parole constitutes
27
“far too crabbed a reading of the decision.” Westefer v.
Snyder, 422 F.3d 570, 590 (7th Cir. 2005).
In the end, the Supreme Court felt “satisfied” that the
conditions in Wilkinson, taken together, “impose[d] an atypical
and significant hardship under any plausible baseline.”
Wilkinson, 545 U.S. at 223 (emphasis added). The Supreme Court
therefore felt no need to identify the baseline to which the
conditions should be compared. Id.Here, I feel “satisfied” that Prieto’s conditions of
confinement, which are strikingly similar to those in Wilkinson,
when taken together “impose[] an atypical and significant
hardship under any plausible baseline.” Id. And if the Supreme
Court did not need to identify a particular baseline to reach
such a conclusion, neither do I.
B.
In my view, the majority opinion seeks to engage in just
the sort of “parsing” that the Supreme Court moved away from
with Sandin and Wilkinson. For example, the majority opinion
understands Sandin and Wilkinson as holding that a prisoner must
first show that a written prison regulation gives rise to a
protected liberty interest before reaching the atypical and
significant hardship inquiry. See ante at 6-14. But following
that logic to its end would mean that prisoners have no interest
in avoiding even extreme hardships so long as a state simply
28
removes all delineating prison regulations or expressly
disclaims any liberty expectation. Yet it was precisely this
type of “parsing” and resulting “disincentive[s] for States to
promulgate procedures for prison management” that the Supreme
Court sought to curtail. Wilkinson, 545 U.S. at 222.
The majority opinion also “re-organizes” the Supreme
Court’s Wilkinson analysis in misleading ways. For example, the
only “threshold question” the Supreme Court identified in
Wilkinson was whether “the inmates establish[ed] a
constitutionally protected liberty interest”—not the sentence
fragment from a different paragraph that the majority opinion
redlines in to play the part of the “threshold question.” 545
U.S. at 221. A second example: The majority opinion contends
that the risk of erroneous placement coupled with the harsh
conditions “triggered” due process protections. Ante at 11.
Yet in Wilkinson, the Supreme Court considered the erroneous
placement issue only after it had already held that a liberty
interest in avoiding the harsh conditions existed, as a factor
for determining whether the procedures in place sufficed. 545
U.S. at 224-25.
The majority opinion places much emphasis on the fact that
because all capital offenders in Virginia automatically land on
death row, Prieto has no interest in avoiding its conditions and
thus no due process rights. See ante at 14-15. In this
29
respect, too, Prieto’s case overlaps with Wilkinson: The
Supreme Court noted that some defendants there were
automatically assigned to the restrictive supermax confinement
as a consequence of being “convicted of certain offenses.”
Wilkinson, 545 U.S. at 216. But the Supreme Court in no way
excluded those inmates from the ambit of its holding or
otherwise suggested that because of their automatic assignment,
they had no liberty interest in avoiding the restrictive
supermax conditions.
Instead, the Supreme Court broadly stated that “the
touchstone of the inquiry into the existence of a protected,
state-created liberty interest in avoiding restrictive
conditions of confinement is not the language of regulations
regarding those conditions but the nature of those conditions
themselves ‘in relation to the ordinary incidents of prison
life.’” Id. at 221 (citation omitted). In my view, the
majority opinion’s myopic search of a written regulation betrays
this touchstone and “stray[s] from the real concerns
undergirding the liberty protected by the Due Process Clause.”
Sandin, 515 U.S. at 483.
I agree with the majority opinion that the Supreme Court
has been anything other than consistent in its approach to
prisoner due process cases. The Supreme Court suggested that
prisoner liberty interests exist whenever something is
30
sufficiently important. See, e.g., Morrissey v. Brewer, 408
U.S. 471 (1972). Then it indicated that liberty interests are a
function of mandatory verbiage in written regulations. See,
e.g., Wolff v. McDonnell, 418 U.S. 539 (1974). Later the Court
rethought that approach, holding that such verbiage is, in fact,
not so important after all. See, e.g., Wilkinson, 545 U.S. 209.
It is, therefore, not surprising that lower courts have not
found it easy to agree on how best to read the due process tea
leaves in the prison context. See ante at 7 (comparing Chappell
v. Mandeville, 706 F.3d 1052 (9th Cir. 2013), with Tellier v.
Fields, 289 F.3d 69 (2d Cir. 2000)).
Finally, the majority opinion suggests that an analysis
like mine bucks controlling circuit precedent, and particularly
Lovelace v. Lee, 472 F.3d 174, 202 (4th Cir. 2006). Yet that
case does not present the obstacle the majority opinion
portrays. In Lovelace, we admonished the district court for its
failure to address the plaintiff’s due process claim and
remanded the matter to the district court for a determination
“in the first instance.” 472 F.3d at 203. Therefore, even
assuming that one could not square my view with Lovelace,
anything Lovelace said about the due process claim seems to be
only dictum, and in any event the assertion that the case
“reject[ed] [my] approach” is gross overstatement. Ante at 11.
Moreover, to the extent Lovelace parts ways with Wilkinson, we
31
certainly “have no authority to overrule a Supreme Court
decision.” Scheiber v. Dolby Labs., Inc., 293 F.3d 1014, 1018
(7th Cir. 2002) (Posner, J.).
In sum, taking the Supreme Court at its word, it told us
that we are not to parse written regulations but rather that the
“touchstone of the inquiry into the existence of a protected,
state-created liberty interest in avoiding restrictive
conditions of confinement is not the language of regulations
regarding those conditions but the nature of those conditions
themselves in relation to the ordinary incidents of prison
life.” Wilkinson, 545 U.S. at 223 (quotation marks omitted).
Here, as in the strikingly similar Wilkinson, the conditions are
sufficiently egregious that “taken together[, they] impose an
atypical and significant hardship within the correctional
context” when compared to “any plausible baseline” and thus
“give rise to a liberty interest in their avoidance.”
Wilkinson, 545 U.S. at 223.
That being said, there is no necessary tension between the
existence of a liberty interest in avoiding restrictive
conditions of confinement and, for example, the state’s
penological interests or the fact that we are dealing with a
prison and not a resort. As the Supreme Court has stated,
“harsh conditions may well be necessary and appropriate in light
of the danger that high-risk inmates pose both to prison
32
officials and to other prisoners. That necessity, however, does
not diminish our conclusion that the conditions give rise to a
liberty interest in their avoidance.” Id.II.
Once a liberty interest is established, the question then
becomes what process is due to protect it. To determine whether
procedural safeguards sufficed to protect the liberty interest
in Wilkinson, the Supreme Court looked to three factors:
“First, the private interest that will be affected by
the official action; second, the risk of an erroneous
deprivation of such interest through the procedures
used, and the probable value, if any, of additional or
substitute procedural safeguards; and finally, the
Government’s interest, including the function involved
and the fiscal and administrative burdens that the
additional or substitute procedural requirement would
entail.”
Id. at 224–25 (quoting Mathews v. Eldridge, 424 U.S. 319, 335
(1976)). Applying those factors, the Supreme Court held that
“informal, nonadversary procedures” informing inmates of the
factual basis for their restrictive placement, a fair
opportunity for rebuttal, and regular review sufficed to comport
with due process. Id. at 229.
Here, any attempt to apply the salient factors would be in
vain—because Virginia affords capital offenders no process.
Virginia tries to offer up its sentencing procedures as all the
due process required. Of course, the same could be said of all
33
prisoners. Yet no Supreme Court case has ever suggested that is
so. Further, under such a regime, sentencing discretion could
result in two defendants who commit the same crime and possess
the same aggravating factors receiving vastly different
conditions of confinement and procedural safeguards. The
conviction and sentence alone, therefore, do not represent a
principled manner for determining due process rights. 2
At the end of the day, all of this ink is being spilled
over whether Virginia needs to provide minimalist procedural
safeguards like those in Wilkinson to less than ten prisoners—
the current number of inmates on Virginia’s death row. Again,
the “harsh conditions may well be necessary and appropriate” for
these prisoners. Wilkinson, 545 U.S. at 223. But that “does
not diminish” the conclusion that “the conditions give rise to a
liberty interest in their avoidance”—and that all that would be
required to comport with due process would be informal notice
and an informal opportunity to be heard. Id. at 224. These
procedural safeguards, in my view, Prieto should have.
2
The majority opinion purports that it does “not hold, or
even suggest, that differences in the nature of a conviction or
the length of a sentence give rise to different liberty
interests.” Ante at 19. But allowing Virginia to confine
Prieto automatically, based on his death sentence, to highly
restrictive conditions for the duration of his incarceration (so
far, almost seven years) and without any opportunity for review
does just that.
34
III.
For the reasons above, I would affirm the district court’s
judgment and, accordingly, respectfully dissent.
35