Alfredo Prieto v. Harold Clarke
Filing
PUBLISHED AUTHORED OPINION filed. Originating case number: 1:12-cv-01199-LMB-IDD. [999542758]. [13-8021, 14-6226]
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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.
-------------------------
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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.
opinion, in which Judge Shedd
dissenting opinion.
Judge Motz wrote the majority
joined.
Judge Wynn wrote a
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.
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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),
prisoners
are
assignment
to
460.1A
not
any
(I).
subject
alternative
Unlike
to
other
security
confinement.
prisoners,
these
classification
Id.
Inmates
or
on
death row live in separate single cells, with visitation and
3
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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
appointed counsel for him. 1
plausible
Due
Process
claim
and
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
interest
that
in
Prieto
avoiding
had
them
established
and
1
that
a
Due
Prieto’s
Process
liberty
automatic
and
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
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permanent
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assignment
to
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death
row
constitutionally adequate process.
The
district
Virginia
court
then
prison
conditions
officials
of
individualized
either
or
classification
not
afford
him
Id. at *7-8.
issued
confinement”
did
an
to
injunction
“improve
provide
[Prieto]’s
Prieto
determination”
for
ordering
with
his
“an
prison
housing, like the classification procedure afforded by state law
to non-capital offenders.
awarded
Prieto
officials
all
appeal
Id.
costs
both
In a subsequent order, the court
and
attorney’s
orders;
we
fees.
consolidated
The
the
prison
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
protected
we
liberty
conclude
that
interest,
we
Prieto
need
cannot
not
establish
consider
a
the
sufficiency-of-process requirement.
The Supreme Court has long recognized that a prisoner may
have
a
state-created
liberty
5
interest
in
certain
prison
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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.”
U.S. at 224.
Meachum, 427
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
directive
interests,
created
a
holding
state
law
procedural Due Process protections.
that
liberty
any
mandatory
interest
state
triggering
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).
2
In an effort to eliminate the
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
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“[p]arsing”
of
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state
statutes
to
find
rights
by
“negative implication,” the Court corrected course in Sandin v.
Conner, 515 U.S. 472, 481-82 (1995).
requirement
for
establishing
a
There it added a second
liberty
constitutionally adequate process.
interest
warranting
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
life.”
A
in
relation
to
the
ordinary
incidents
of
prison
Id. at 484.
decade
later,
in
Wilkinson
v.
Austin,
545
U.S.
(2005), the Court applied this “two-part analysis.” 3
expressly
reaffirmed
established
a
that
in
state-created
determining
liberty
if
a
Wilkinson
prisoner
interest
209
in
has
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
3
Clause
an
inmate
must
also
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”).
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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.
at 215-17, 221.
prong:
Id.
The Wilkinson Court thus focused on the second
whether these regulations created a “liberty interest in
avoiding restrictive conditions of confinement.”
Reiterating
Sandin’s
teaching,
Wilkinson
Id. at 223.
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
(quoting
Sandin,
omitted).
found
to
the
ordinary
incidents
515
at
U.S.
484)
of
prison
(internal
life.”
Id.
quotation
marks
Assignment to and confinement at the supermax was
constitute
an
“atypical
and
significant
hardship,”
because all other prisons in which the inmates could have been
housed
under
Ohio’s
classification
less-onerous confinement conditions.
regulations
had
markedly
See id. at 223-24.
And,
for this reason, the Court concluded that “under any plausible
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baseline,” the harsh conditions at the supermax “g[a]ve rise to
Id. at 223-24. 4
a liberty interest in their avoidance.”
Prieto
properly
Wilkinson
to
his
district
court
misunderstandings
recognizes
the
But
challenge.
importance
his
adopted,
rests
of
cases.
those
on
of
Sandin
and
analysis,
which
the
interrelated,
Prieto
treats
critical
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
conditions.
creates
the
possibility
of
avoiding
such
Moreover, Prieto fails to recognize that he cannot
satisfy either of the two requirements for a protected, statecreated 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
interest.
alone,
can
give
rise
to
a
state-created
liberty
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.
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baseline,”
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545
U.S.
at
223,
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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.”
thing.
Appellee’s Br. 17.
But the Sandin Court did no such
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
establish a protected liberty interest.
finding
a
basis
for
an
interest
or
showing
necessary
Id. at 482.
expectation
in
to
After
state
regulations, an inmate must then demonstrate that denial of this
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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
Court
Wilkinson, 545 U.S. at 224-25.
simply
established in Sandin.
applied
the
two-prong
The
approach
Thus Wilkinson neither eliminates the
first prong nor implies that the “nature of th[e] conditions”
alone establishes a protected liberty interest. 5
Moreover,
Prieto
rejecting his approach.
ignores
our
own
Id. at 223.
binding
precedent
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.
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to
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demonstrate
process
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a
liberty
protection,
a
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interest
prisoner
must
meriting
show
(1)
procedural
denial
of
due
“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.’”
at 202 (quoting Sandin, 515 U.S. at 484).
Lovelace, 472 F.3d
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.
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Due Process claim into an Eighth Amendment claim.
The Eighth
Amendment’s
punishment
“appl[ies]
prohibition
when
the
and
cruel
conditions
punishment at issue.”
(1981).
on
and
of
unusual
confinement
compose
the
Rhodes v. Chapman, 452 U.S. 337, 347
Allegations that prison conditions “involve the wanton
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.
requires
a
court
to
determine
The Due Process clause
whether
a
state
has
provided
prisoners with adequate process in applying prison regulations
and policies.
confinement
Treating Sandin and Wilkinson as holding that
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
confinement
thus
errs
in
contending
conditions
in
and
of
that
harsh
themselves
and
give
atypical
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)
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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.
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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.
state-created
For the corollary to the requirement that a
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
established
written
confinement
policy
when
expressly
the
State’s
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
confinement
impose
relation
the
to
an
establish
that
atypical
ordinary
and
incidents
8
Of course, a court need
question if an inmate has been
liberty interest.
Here there has
there is no state-created liberty
(Continued)
15
the
conditions
significant
of
prison
of
hardship
life. 8
his
in
Prieto
only reach the atypicality
deprived of a state-created
been no deprivation, because
interest.
Nevertheless, we
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recognizes,
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as
he
must,
Pg: 16 of 35
that
the
Supreme
Court
has
yet
to
identify the baseline for determining whether a state regulation
imposes
raises
such
an
several
conditions
of
atypical
arguments
his
and
significant
in
support
confinement
on
hardship.
of
his
death
view
But
he
the
satisfy
row
that
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
Appellee’s Br. 27.
on
the
general
prison
population.”
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
significant hardship “under any plausible baseline.”
and
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.
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disciplinary segregation but thereafter retained in segregation
for six more months.
respect
to
those
Beverati, 120 F.3d at 501-02.
inmates
in
disciplinary
Only with
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
surprise that the baseline does, too.
interpreted
Beverati
Rather,
have,
we
to
as
establish
Sandin
should
come
as
no
Moreover, we have never
the
rule
instructed,
Prieto
stressed
suggests.
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”
instructive.
in
the
state’s
prisons,
Wilkinson
is
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
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courts
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as
atypicality.
conditions”
Filed: 03/10/2015
to
the
Pg: 18 of 35
appropriate
baseline
for
determining
But no party contended that the “ordinary prison
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
particular conditions. 10
by
state
law
to
be
confined
under
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
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hardship.
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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.
dictated
by
a
prisoner’s
conviction
and
For conditions
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.
recently
explained,
particular
inmate’s
confinement
conditions
conviction
routinely
sentences.”
“will
and
imposed
As the Tenth Circuit
on
differ
the
depending
nature
inmates
of
on
a
nonpunitive
serving
comparable
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
confinement
incidents
of
crime
and
conditions
prison
receiving
are,
life”
by
for
a
definition,
such
19
certain
offenders.
sentence,
the
those
“ordinary
Virginia
law
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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.”
Wilkinson, 545 U.S. at 223.
20
Id.
(emphasis
added);
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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.
expected
from
--
the
indeed
mandated
conviction
and
confinement
--
That confinement is the
confinement
condition
sentence.
State
conditions,
and
law
here
flowing
defines
state
law
the
perimeters
of
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
severe.
Indeed,
conditions
the
of
district
confinement
court,
are
undeniably
perhaps
correctly,
described the isolation that characterizes Virginia’s death row
as “dehumanizing”.
Prieto, 2013 WL 6019215, at *6. 11
11
But the
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
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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
prison confinement conditions.
eliminating
management
“disincentives
procedures,”
the
and
regulations
But it has not.
for
States
Sandin
to
Court
governing
Concerned with
‘codify’
adopted
an
prison
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
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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
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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.
209, 220–21 (2005).
determining
focus
on
whether
the
“the
Wilkinson v. Austin, 545 U.S.
And the Supreme Court told us that in
such
a
nature
liberty
of
those
interest
exists,
conditions
we
must
themselves
relation to the ordinary incidents of prison life.”
in
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.”
conditions
Id. at 224.
could
be
In other words, the restrictive
imposed—but
not
without
procedural
safeguards such as notice and an opportunity to be heard.
This
similar
case
to,
Wilkinson.
presents
and
I
conditions
arguably
would
more
therefore
of
confinement
egregious
follow
strikingly
than,
Wilkinson
those
and
in
find
Plaintiff Alfred Prieto entitled to at least some modicum of
procedural due process.
In my view, the majority opinion reads
Wilkinson
narrowly
unnecessarily
in
signing
off
on
Prieto’s
automatic, permanent, and unreviewable placement in the highly
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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
establish that one of these interests is at stake.”
must
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
language
of
themselves
life.”
conditions
regulations
in
relation
“but
to
of
the
the
confinement
nature
ordinary
of
was
those
incidents
not
the
conditions
of
prison
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
language
of
in
any
Wilkinson
law
or
did
the
regulation
Supreme
or
Court
otherwise
parse
suggest
the
that
written words governing the conditions of confinement are the
linchpins to finding a liberty interest.
Court
analyzed
the
conditions
themselves
See id.
and
Instead, the
then
held
that
“taken together they impose an atypical and significant hardship
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the
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correctional
Pg: 26 of 35
context.
It
follows
that
prisoners] have a liberty interest in avoiding” them.
224.
[the
Id. at
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
Wilkinson:
conditions
the
caught
solitary
the
nature
of
Supreme
the
Court’s
confinement
eye
and
in
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.
Wilkinson, 545 U.S. at 223-24.
See
The Supreme Court looked at the
totality of the conditions and held that “taken together they
impose
an
atypical
correctional context.”
and
significant
hardship
within
the
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
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In
this
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case,
the
Pg: 27 of 35
conditions
mirror those in Wilkinson.
of
confinement
essentially
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.
indefinite:
In
And Prieto’s confinement on death row is
No opportunity for review of the placement exists.
some
respects,
Prieto’s
conditions
restrictive than those in Wilkinson.
are
actually
more
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
disqualification
eligible
for
at
for
parole
issue
parole.
became
in
Wilkinson
but
Specifically,
ineligible
when
absent
inmates
placed
here
is
otherwise
into
the
restrictive supermax confinement at issue in Wilkinson.
545
U.S.
limited
its
otherwise
be
at
holding
224.
only
But
to
the
those
Supreme
(few)
Court
inmates
in
no
who
way
would
eligible for parole but for their supermax confinement.
agree
with
the
Seventh
Circuit
that
any
contention
And I
that
Wilkinson turned on the (in)eligibility for parole constitutes
27
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“far
Doc: 56
too
Filed: 03/10/2015
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a
the
crabbed
reading
of
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
Wilkinson, 545 U.S. at 223 (emphasis added).
baseline.”
The Supreme Court
therefore felt no need to identify the baseline to which the
conditions should be compared.
Here,
I
feel
Id.
“satisfied”
that
Prieto’s
conditions
of
confinement, which are strikingly similar to those in Wilkinson,
when
taken
together
“impose[]
an
atypical
hardship under any plausible baseline.”
Id.
and
significant
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
significant hardship inquiry.
before
reaching
the
See ante at 6-14.
atypical
and
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
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removes
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all
delineating
Pg: 29 of 35
prison
regulations
disclaims any liberty expectation.
or
expressly
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.
The
majority
Wilkinson, 545 U.S. at 222.
opinion
also
“re-organizes”
Court’s Wilkinson analysis in misleading ways.
only
“threshold
Wilkinson
question”
was
constitutionally
the
whether
protected
Supreme
“the
Supreme
For example, the
Court
identified
in
establish[ed]
inmates
liberty
the
a
interest”—not
the
sentence
fragment from a different paragraph that the majority opinion
redlines in to play the part of the “threshold question.”
U.S. at 221.
that
the
A second example:
risk
of
erroneous
545
The majority opinion contends
placement
coupled
conditions “triggered” due process protections.
with
the
harsh
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
29
ante
at
14-15.
In
this
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respect,
too,
Prieto’s
case
Supreme
Court
noted
Pg: 30 of 35
overlaps
that
some
with
Wilkinson:
defendants
The
there
were
automatically assigned to the restrictive supermax confinement
as
a
consequence
of
being
“convicted
Wilkinson, 545 U.S. at 216.
excluded
those
inmates
of
certain
offenses.”
But the Supreme Court in no way
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
life.’”
‘in
Id.
relation
at
221
to
the
(citation
ordinary
incidents
omitted).
In
my
of
prison
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
prisoner due process cases.
prisoner
liberty
interests
consistent
in
its
approach
to
The Supreme Court suggested that
exist
30
whenever
something
is
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sufficiently important.
U.S. 471 (1972).
Pg: 31 of 35
See, e.g., Morrissey v. Brewer, 408
Then it indicated that liberty interests are a
function of mandatory verbiage in written regulations.
e.g., Wolff v. McDonnell, 418 U.S. 539 (1974).
See,
Later the Court
rethought that approach, holding that such verbiage is, in fact,
not so important after all.
It
is,
therefore,
not
See, e.g., Wilkinson, 545 U.S. 209.
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).
case
does
portrays.
failure
not
present
the
obstacle
the
Yet that
majority
opinion
In Lovelace, we admonished the district court for its
to
address
the
plaintiff’s
due
process
claim
and
remanded the matter to the district court for a determination
“in the first instance.”
assuming
that
one
could
472 F.3d at 203.
not
square
my
view
Therefore, even
with
Lovelace,
anything Lovelace said about the due process claim seems to be
only
dictum,
and
in
any
event
the
assertion
that
“reject[ed] [my] approach” is gross overstatement.
the
case
Ante at 11.
Moreover, to the extent Lovelace parts ways with Wilkinson, we
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certainly
Filed: 03/10/2015
“have
decision.”
no
authority
Pg: 32 of 35
to
overrule
a
Supreme
Court
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
life.”
in
relation
to
the
ordinary
incidents
of
prison
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
context”
when
“give
rise
significant
hardship
compared
“any
to
a
to
liberty
within
plausible
interest
in
the
correctional
baseline”
their
and
thus
avoidance.”
Wilkinson, 545 U.S. at 223.
That being said, there is no necessary tension between the
existence
of
conditions
of
a
liberty
interest
confinement
and,
in
for
avoiding
example,
restrictive
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
32
inmates
pose
both
to
prison
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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,
factual
nonadversary
basis
for
procedures”
their
informing
restrictive
inmates
placement,
of
a
the
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
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prisoners.
so.
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Yet no Supreme Court case has ever suggested that is
Further, under such a regime, sentencing discretion could
result in two defendants who commit the same crime and possess
the
same
conditions
aggravating
of
factors
confinement
and
receiving
procedural
vastly
different
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
Appeal: 13-8021
Doc: 56
Filed: 03/10/2015
Pg: 35 of 35
III.
For the reasons above, I would affirm the district court’s
judgment and, accordingly, respectfully dissent.
35
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