Lumumba Incumaa v. Bryan Stirling

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 9:12-cv-03493-DCN. [999612894]. [14-6411]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-6411

LUMUMBA K. INCUMAA, a/k/a Theodore Harrison, Jr.,
Plaintiff - Appellant,
v.
BRYAN P. STIRLING, Acting Director of the South Carolina
Department of Corrections,
Defendant - Appellee.

Appeal from the United States District Court for the District of
South Carolina, at Beaufort.
David C. Norton, District Judge.
(9:12-cv-03493-DCN)

Argued:

March 24, 2015

Decided:

July 1, 2015

Before MOTZ, KEENAN, and THACKER, Circuit Judges.

Affirmed in part, reversed in part, and remanded by published
opinion.
Judge Thacker wrote the opinion, in which Judge Motz
and Judge Keenan joined.

ARGUED: Emily K. Merki, GEORGETOWN UNIVERSITY LAW CENTER,
Washington, D.C., for Appellant.
Andrew Lindemann, DAVIDSON &
LINDEMANN, P.A., Columbia, South Carolina, for Appellee.
ON
BRIEF: Steven H. Goldblatt, Center Director, Ruthanne M.
Deutsch, Supervising Attorney, Lola A. Kingo, Supervising
Attorney,
Ryan
H.
Sellinger,
Student
Counsel,
Appellate
Litigation
Program,
GEORGETOWN
UNIVERSITY
LAW
CENTER,
Washington, D.C., for Appellant.

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THACKER, Circuit Judge:
Lumumba Kenyatta Incumaa (“Appellant”) is a member of
the Nation of Gods and Earths (“NOGE”), a group whose adherents
are also known as “Five Percenters.”

In 1988, Appellant began

serving a sentence of life imprisonment without the possibility
of parole in a prison operated by the South Carolina Department
of Corrections (the “Department” or “Appellee”). 1

Following his

participation in a 1995 prison riot with other Five Percenters,
he was placed in solitary confinement security detention.

He

has remained in solitary confinement for 20 years, despite not
having committed a single disciplinary infraction during that
time.
With this suit, Appellant challenges his confinement
on two grounds.
the

Religious

Appellant’s first cause of action arises under
Land

Use

and

Institutionalized

Persons

Act

(“RLUIPA”), 42 U.S.C. § 2000cc-1, which prohibits a state from
imposing a substantial burden on an inmate’s religious exercise
unless

it

interests

proves
by

the

that
least

the

restriction

restrictive

furthers

means.

In

compelling

this

regard,

Appellant argues that Department policy required him to renounce

1

Appellant originally sued Department Director William
Robert Byars Jr. in his official capacity.
The current
Department Director, Bryan Stirling, replaced Byars as the
defendant. Because Stirling was sued in his official capacity,
we will refer to him and Appellee synonymously.

2

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his affiliation with the NOGE, which he alleges is a religion,
before

the

Department

confinement.

On

the

will

release

second

ground,

him

from

Appellant

solitary

claims

that

Appellee violated his right to procedural due process.
The

district

summary judgment.

court

granted

Appellee’s

motion

for

We affirm the portion of the district court

order discarding Appellant’s RLUIPA claim, which, we agree, was
not sufficient to go before a jury.
grant

of

process

summary

judgment

claim.

confinement,

we

as

it

Appellant’s
hold,

However, we reverse the

relates

20-year

amounts

to

to

Appellant’s

period

atypical

and

of

due

solitary

significant

hardship in relation to the general population and implicates a
liberty interest in avoiding security detention.

Furthermore,

there

Department’s

is

a

triable

dispute

as

to

whether

the

process for determining which inmates are fit for release from
security detention meets the minimum requirements of procedural
due process.
I.
A.
The Five Percenters and Appellant’s Violent History
The NOGE is an “offshoot” of the Nation of Islam and
other religious groups “in the Islamic sphere” that “preach[] a

3

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message

of

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black

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empowerment.”

J.A.

91,

92. 2

The

Five

Percenters also have a history of violence in South Carolina
prisons. 3

As a result, the parties maintain differing views of

the

Percenters.

Five

religious group.

Appellant

maintains

the

NOGE

is

a

Although Appellee does not contest Appellant’s

claim that the NOGE meets the legal definition of a religion,
the Department’s regulations treat the Five Percenters like a
violent

Percenters

have

themselves denied that their organization is a religion.

See

id.

at

gang.

131

Of

note,

(stating,

on

at

the

times,

cover

the

of

Five

“The

Five

Percenter”

newsletter, “WE ARE NOT A RELIGION” (emphasis in original)).
In April 1995, a group of Five Percenters -- including
Appellant -- organized a prison riot.

The assailants took three

Department employees hostage and held them for 11 hours during
an intense standoff with police. 4

Four law enforcement officers

2

Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.
3

In In re Long Term Administrative Segregation of Inmates
Designated as Five Percenters, we observed that a federal
intelligence summary concluded the Five Percenters were “a
radical Islamic sect/criminal group that is often boldly racist
in its views, prolific in its criminal activities, and operates
behind a facade of cultural and religious rhetoric.”
174 F.3d
464, 467 (4th Cir. 1999) (internal quotation marks omitted).
4

In Incumaa v. Ozmint, we noted that Appellant pleaded
guilty to “three counts of hostage-taking and two counts of
assault and battery with intent to kill in relation to his
involvement in the prison riot”; his conviction was vacated on
(Continued)
4

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were hospitalized.
1995,

Appellee

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Following this violent uprising, on June 16,

designated

the

Five

Percenters

as

a

Security

Threat Group (“STG”). 5
B.
Prison Regulation of STGs and their Members
1.
Assignment of STG Members to Special Management Unit
When

the

Department’s

Special

Investigations

Unit

suspects that an inmate is a member of an STG, the unit conducts
a “rigorous investigation” to confirm the inmate’s association.
J.A.

126.

If

membership,
Committee

the
(“ICC”)

Validated-GP,
population,
placement

the

or
in

investigators

Department’s
either

which

security

him

him

the

Institutional

recommends

allows

designates

validate

to

as

detention.

STG

Classification

labeling
reside

inmate’s

the
in

Validated-SD,
According

inmate

as

the

general

which

entails

to

Department

Investigator Elbert Pearson,
If an individual has been validated as
an STG member, but has not committed or been
implicated in any disciplinary infractions

ineffective-assistance-of-counsel
n.1 (4th Cir. 2007).
5

grounds.

507

F.3d

281,

283

The Five Percenters were implicated in at least 484
incidents “of violence and other disruptive conduct” within the
Department prison network from 2003 to 2013. J.A. 220, 222.

5

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or STG activities, that individual would
typically, although not always, receive a
classification of Validated-GP . . . .
If an individual has been validated as
an
STG
member,
and
has
committed
disciplinary
infractions
.
.
.
that
individual
would
typically
receive
a
classification of Validated-SD . . . .
Id. at 126-27.

Security detention, in contrast to disciplinary

detention, is not a punishment for disciplinary infractions but
is used to protect inmates and staff and to maintain prison
order.
If the ICC classifies an STG inmate as Validated-SD,
it

then

determines

where

to

place

restrictions to impose upon him.
security detention units.
either

to

the

Special

the

inmate

and

what

The Department maintains two

A Validated-SD inmate can be assigned
Management

Unit

(“SMU”)

or

the

more

restrictive Maximum Security Unit, which houses inmates who have
engaged

in

violent

infractions.

behavior

or

have

committed

serious

rules

The ICC also determines the inmate’s “behavior

level,” which dictates the inmate’s restrictions and privileges
while in his respective unit.

J.A. 137.

assigned

[d]etention

to

[s]ecurity

[d]isciplinary

[d]etention”

“inmates

charged

are

designated

with . . . assault

6

“Inmates who have been

on

a

without
as
staff

Level

serving
II,

member

and

and/or

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inmate”

are

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“automatically . . . assigned

to

Level

I.” 6

Id.

Level I inmates are held in the “strictest degree of custody and
control” available in their unit.
Due
validated

as

to
a

his
Five

role

in

Id. at 149.
the

Percenter,

1995

riot,

designated

placed in the Maximum Security Unit.

Appellant

was

Validated-SD,

and

His assignment to security

detention was not a punishment for participating in the riot but
was generally intended “to maintain and control the inmate and
to provide safety and security for the staff and other inmates.”
J.A. 284.

Appellant was transferred to the SMU in 2005, and he

has remained in the SMU as a Level II inmate since that time.
He is currently one of only two Five Percenters housed in the
SMU -- other validated Five Percenters are permitted to reside
in the general population and openly maintain their affiliation
with

the

group.

During

the

decades

Appellant

has

spent

in

security detention, he has not committed a single disciplinary
infraction.

6

Although the Department regulations only mention two
behavior levels, the ICC’s classification notices imply that a
Level III also exists. See Incumaa v. Ozmint, 507 F.3d at 28384 (discussing Level III classification).

7

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2.
Conditions in SMU versus General Population
Appellant

claims

the

SMU

is

restrictive than the general population.
not contradict this account.

substantially

The Department does

As an SMU inmate, Appellant is

•

confined to his cell “24 hours a day on nonrecreation and non-shower days”;

•

permitted to leave his cell for recreation
only one hour approximately ten times per
month;

•

allowed only a ten-minute shower three times
per week;

•

“stripped [sic] searched, made to lift and
shake his genitalia, made to bend over,
spread his buttocks in the direction of the
officer so that he may look at [Appellant’s]
anus, then made to squat and cough, and
afterwards hand cuffed behind his back every
time he leaves the cell, even to the shower
where he is locked in a single occupancy
shower stall”;

•

served smaller portions of food than inmates
in the general population receive;

•

required to eat all meals in his cell;

•

limited to property that can fit into a box
that is 15 by 12 by 10 inches;

•

“denied all canteen privileges”;

•

denied
“education
opportunities”; and

•

“denied the opportunity to receive
health treatment for his diagnosed
health condition.”

and

8

more

vocational

mental
mental

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J.A. 23-24.
3.
Review of SMU Detention
Department regulations require the ICC to review each
SMU inmate’s candidacy for release every 30 days.

According

Pearson, there are three bases on which the ICC may recommend
reclassification

and

release

from

the

SMU:

(1)

the

inmate

renounces affiliation with the STG; 7 (2) improvement in behavior
level; or (3) the Department Director removes the inmate’s group
from the STG list.
To renounce his affiliation, the inmate “fills out a
detailed questionnaire about why he or she wants to renounce
membership” in the STG.
questionnaire

and

J.A. 127.

determines

whether

renounce STG affiliation is sincere.
choose

to

affiliation.

reject

an

The ICC then reviews the

inmate’s

the

inmate’s

attempt

to

Consequently, the ICC may
attempt

to

renounce

his

See Reply to Pl.’s Resp. to Defs.’ Mot. for Summ.

7

Pearson diverges from the letter of the Department
regulations don this point to some extent.
The Department
regulations do not mention the renunciation policy; they only
state that “[i]nmates who have clear disciplinary records and
who comply with unit procedures, inmate grooming and sanitation
standards will be considered for . . . release from SMU.”
J.A.
138.
However, because we must interpret the evidence in the
light most favorable to Appellant -- and because Appellee
apparently concedes this point -- we will assume that the
renunciation policy is a feature of the Department regulations.

9

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Jud. at 2, Incumaa v. Byars, No. 9:12-cv-03493 (D.S.C. Dec. 12,
2012; filed Aug. 31, 2013), ECF No. 34 (“It is unclear whether
[the Department] would even allow the Plaintiff to renounce and
be reassigned to the general population given his involvement as
a ringleader in the 1995 riot . . . .”).
With

regard

to

reclassifications

based

on

“behavior

level,” J.A. 138, Department regulations state:
Inmates who have clear disciplinary
records
and
who
comply
with
unit
procedures . . . will be considered for
advancement from Level I to Level II or
release from SMU. . . .
The decision
to
release
an
inmate
from
SMU . . . will
be
based
upon
the
inmate’s overall disciplinary record
and compliance with all Agency policies
and procedures while in SMU.
Id. at 138, 139.
the

inmate’s

Pursuant

to

period,

the

The ICC has authority “to reduce or advance

Level

as

it

Department
ICC

is

deems

appropriate.”

regulations,

required

to

after

each

deliver

a

Id.

at

30-day
notice

classification decision to the inmate within 48 hours.

138.

review
of

its

However,

the regulations do not require the ICC to provide any factual
basis

for

its

decision

to

maintain

an

inmate

at

the

same

behavior level or to recommend against release from the SMU.
The record contains copies of the ICC’s classification
notices to

Appellant,

and

these

notices

span

nine

months

February to November 2012 -- of his solitary confinement.

10

--

Each

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notice is nearly identical to the next and simply states that
Appellant continues to be held in the SMU and “remain[s] Level
II.”

J.A. 95-103.

letter
The

All provide the same perfunctory, five-

justification

ICC’s

Department

required
records

Memoranda.”

for

this

30-day

Id.

labeled
at

recommendation:

reviews
Form

138.

are

18-68,

The

“STG-SD.”

also
also

record

Id.

documented

known

on

as
the

Staff

contains

“Staff

Memoranda documenting review of Appellant’s confinement in the
SMU every 30 days from May 2008 to May 2013. 8
are

64

entries

in

the

record.

All

but

In total, there
one

of

them

is

accompanied by the same comment: “Warden’s review, 30 day ICC &
monthly visit.”

Id. at 156-58.

The single varying entry -- on

April 25, 2012 -- states that Appellant “remain[ed] in SMU” and
would “not renounce his affiliation” with the Five Percenters.
Id. at 158.

None of the entries provides a detailed explanation

of the basis for Appellant’s continued confinement.
According

to

Department

regulations,

periodic release review is single-layered. 9

the

ICC’s

The warden does not

8

Although prison officials claim that Appellant’s custody
has been reviewed every 30 days since his transfer to the SMU,
the Department did not produce the Staff Memoranda from, 2005 to
2007.
9

Although 30-day status reviews are entered as “Warden’s
Review” on the Staff Memoranda, it appears from the record that
the ICC conducts these evaluations on the warden’s behalf.
Where they discuss review for release from the SMU, the
(Continued)
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the

ICC’s

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regarding

confinement

unless

the

inmate “appeal[s] the decision of the ICC through the inmate
grievance system” or the ICC recommends release from security
detention, in which case “[t]he ICC must ensure the concurrence
of the Warden/Designee for the inmate’s release.” 10

J.A. 137,

139.
Appellant

filed

a

grievance

on

April

21,

2009,

alleging that the ICC “refus[ed] to consider [him] for a lower
security detention level until and unless [he] renounce[d] [his]
faith” -- which, he said, “impose[d] a substantial burden on
[his] ability to exercise [his] religion.”

J.A. 12.

In the

section marked “action requested,” Appellant requested reform of

Department regulations emphasize the ICC’s role, not the
warden’s: “The decision to release an inmate from SMU can be
recommended by the ICC,” and “[t]he ICC . . . ha[s] the
authority to reduce or advance the inmate’s Level as it deems
appropriate based on the inmate’s behavior while housed in SMU.”
J.A. 138, 139.
Additionally, the regulations state that “the
Warden must review the status of all inmates in continuous
confinement for more than 30 days,” but direct staff to document
reviews on a form entitled “SCDC Form 19-30, SMU Institutional
Classification Committee Review.”
Id. at 138 (internal
quotation marks omitted).
10

While the Department regulations, read literally, only
permit inmates to appeal the ICC’s decision to place them in
security detention, Appellant was allowed to file a grievance
regarding the ICC’s decision that he remain in the SMU.
Therefore, for the purposes of this case we will interpret the
regulations as authorizing inmates already in the SMU to oppose
a classification review decision through the grievance system.

12

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the

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STG

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policy

“so

that

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classifications

individual, not religious basis.”
“regular

and

periodic

classification.”
requests

could

evaluations

Id.
not

Id.
by

are

made

on

an

Appellant also requested
the

[ICC]

of

[his]

STG

The warden responded that Appellant’s
be

accommodated

because

“[t]he

issue

[Appellant] addressed is an issue against policy, which cannot
be changed” by the administrators of the prison because policy
changes

“are

made

at

the

institutional

level.”

Id.

Accordingly, the warden denied Appellant’s grievance.

at

13.

Appellant

appealed the warden’s decision to the Department’s director, who
concurred with the warden because Appellant “ha[d] been informed
on what procedures [he] must follow to be considered for release
from the [SMU], to include renouncing [his] affiliation with
[the Five Percenters].”

Id. at 14.
C.
Procedural History

On

December

12,

2012,

Appellant

complaint pursuant to 42 U.S.C. § 1983.

filed

a

pro

se

Appellant claimed that

the Department’s renunciation policy violated his rights under
RLUIPA.

Appellant also claimed that, throughout his detention

in the SMU, the Department violated his procedural due process
rights by failing to conduct meaningful review of whether he was
fit for release to the general population.

13

Appellee moved for

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summary judgment on both of these claims.
granted the motion.

The district court

Though the court assumed that the NOGE

constituted

a

religion

Appellant’s

confinement

--

and

imposed

apparently
a

determined

substantial

burden

that

on

his

beliefs -- it nonetheless concluded that the Department’s policy
was “the least restrictive means of furthering the government’s
compelling

interests”

and

therefore

did

not

violate

RLUIPA.

Incumaa v. Stirling, No. 9:12-cv-03493, 2014 WL 958679, at *7
(D.S.C. Mar. 11, 2014).

The court also held that Appellant’s

procedural rights were not violated because he failed to prove
that his circumstances of imprisonment “[rose] to the level of
an

atypical

establishing
security

and
a

substantial

due

process

detention.

Id.

hardship”
right

at

*10.

to

--

a

review

prerequisite
for

Appellant

release

filed

a

to

from

timely

appeal.
Appellant argues that a reasonable juror may find that
Department policy places a substantial burden on his exercise of
religion

because

it

conditions

renouncing his NOGE faith.

release

from

the

SMU

on

He also argues that the district

court erred in concluding that the conditions he has experienced
for the last 20 years in solitary confinement do not constitute
atypical and significant hardship in relation to the ordinary
incidents of prison life.

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II.
“We

review

the

judgment de novo. . . .

district

court’s

grant

of

summary

As to those elements on which it bears

the burden of proof, a government is only entitled to summary
judgment

if

factfinder

the
could

proffered
only

evidence

find

for

is

the

such

government”

entitled to judgment as a matter of law.
F.3d 246, 250 (4th Cir. 2009).

that

a

rational

and

it

is

Smith v. Ozmint, 578

To make this determination, we

review the entire record, evaluating the evidence in the light
most favorable to Appellant.

See Beverati v. Smith, 120 F.3d

500, 503 (4th Cir. 1997).
III.
A.
RLUIPA Claim
In relevant part, RLUIPA states:
No government shall impose a substantial
burden on the religious exercise of a person
residing
in
or
confined
to
an
institution . . . ,
even
if
the
burden
results
from
a
rule
of
general
applicability,
unless
the
government
demonstrates that the imposition of the
burden on that person-(1) is in furtherance of a compelling
governmental interest; and
(2) is the least restrictive means of
furthering that compelling governmental
interest.

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42 U.S.C. § 2000cc-1(a). 11
By enacting RLUIPA, Congress afforded prisoners freeexercise rights similar to those enjoyed by the free population.
See Cutter v. Wilkinson, 544 U.S. 709, 715-17 (2005).
prescribes
exercise

a

shifting

claims.

The

burden

of

inmate

proof

bears

for

the

inmate

initial

RLUIPA

religious
burden

to

demonstrate that the prison’s policy exacts a substantial burden
on religious exercise.

If the inmate clears this hurdle, the

burden shifts to the government to prove its policy furthers a
compelling governmental interest by the least restrictive means.
See 42 U.S.C. § 2000cc-2(b).
A prison regulation may impose a “substantial burden”
by forcing “a person to ‘choose between following the precepts
of her religion and forfeiting [governmental] benefits, on the
one

hand,

and

abandoning

one

religion . . . on the other hand.’”
174,

187

(4th

Cir.

2006)

of

the

precepts

regulation

places

the

(alterations

person

her

Lovelace v. Lee, 472 F.3d
in

original)

Sherbert v. Verner, 374 U.S. 398, 404 (1963)).
the

of

between

a

(quoting

In other words,
rock

and

a

hard

place.

11

As a “governmental entity created under the authority of
a State,” the Department “fit[s] within [the] definition” of
“government.”
Smith v. Ozmint, 578 F.3d 246, 250 (4th Cir.
2009).

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For example, in Couch v. Jabe, an inmate claimed that
his religious beliefs required him to grow a one-inch beard.
679 F.3d 197, 199 (4th Cir. 2012).
hair

and

the

prison

“limit[ed]

Prison policy forbade facial
or

benefits” to enforce the beard ban.

t[ook]

away

Id. at 200.

governmental
If the inmate

cut his beard, the prison reinstated the benefits.

We held that

this practice “fit squarely within the accepted definition of
substantial
between

burden”

following

privileges.

because
the

it

edicts

forced
of

his

the

inmate

religion

to

choose

and

losing

Id. (internal quotation marks omitted).

The Supreme Court recently held the same.

In Holt v.

Hobbs, a prisoner faced “serious disciplinary action” if he grew
a beard as dictated by his religion.

135 S.Ct. 853, 862 (2015).

The Court concluded that “put[ting] petitioner to [the] choice”
between

punishment

violating

his

burden[ed] his religious exercise.”

Id.

Here,

and

Appellant

argues

that

beliefs

the

“substantially

Department

policy

similarly imposes a substantial burden on his religious exercise
because it “forces [him] to choose between continued adherence
to his religion in solitary confinement, on one hand, and the
far more favorable living conditions of the general population,

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Appellant’s Br. 49. 12

on the other.”
we

assume

religious

Pg: 18 of 42

without
group

deciding

entitled

that

to

For purposes of this case,

the

Five

protection.

Percenters

This

are

argument

a

fails

because the Department Policy forces no such choice upon him.
Indeed, according to Pearson, renunciation is only one of three
avenues for securing release from the SMU, and Department Policy
does not guarantee release even if a Validated-SD inmate does
renounce.

See

J.A.

127.

Moreover,

Appellant

himself

acknowledges that other Five Percenters are permitted to reside
in the general population and openly maintain their affiliation.
Appellant’s argument that the Department’s singular goal is to
make him renounce his religion is further undermined by the fact
that

Department

officials

permit

Appellant

to

possess

NOGE

materials while in the SMU but ban these items in the general
population.
Appellant

notes

that

he

has

not

committed

any

disciplinary infractions since the 1995 riot and points us to
one

entry

mentioned

in

the

that

affiliation.

Staff

Memoranda

Appellant

refused

where
to

an

SMU

staff

renounce

his

member
NOGE

He argues that this evidence demonstrates that

12

Appellant mentions in passing that SMU regulations also
prevent him from celebrating “Honor Days,” the NOGE’s highest
holidays, but the only substantial burden he argues in his brief
relates to the Department renunciation policy.
Appellant’s Br.
48.

18

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renunciation must be a prerequisite to returning to the general
population.

Although

“administrative

segregation

may

not

be

used as a pretext for indefinite confinement,” on this record it
would be unreasonable to conclude that the ICC has no plausible
reason

other

affiliation

than

for

Appellant’s

continuing

to

refusal
view

prison staff and other inmates.

to

renounce

Appellant

as

a

his

NOGE

threat

to

Hewitt v. Helms, 459 U.S. 460,

477 n.9 (1983); see also Cutter, 544 U.S. at 717 (noting that
Congress

“anticipated . . . that

courts

would

apply

[RLUIPA]

with due deference to the experience and expertise of prison and
jail administrators” (internal quotation marks omitted)).
In sum, no reasonable factfinder could conclude that
Appellant’s

renunciation

of

his

faith

returning to the general population.

is

a

prerequisite

to

Appellant has failed to

demonstrate that the Department’s policy imposes a substantial
burden on his religion.

Therefore, we conclude that Appellee

must prevail on the RLUIPA claim as a matter of law.
B.
Due Process Claim
Appellant also presses a procedural due process claim.
Our analysis of this claim entails a two-step process.
we

determine

whether

Appellant

had

a

interest in avoiding security detention.
687 F.3d 171, 180 (4th Cir. 2012).

19

protectable

First,
liberty

See Burnette v. Fahey,

Second, we then evaluate

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whether

the

Filed: 07/01/2015

Department

failed

Pg: 20 of 42

to

afford

Appellant

adequate process to protect that liberty interest.
181.

minimally
See id. at

For the reasons that follow, we conclude Appellee cannot

prevail

on

Therefore,

either
we

of

reverse

these
the

sub-issues

district

as

a

court’s

matter

order

of

of

law.

summary

judgment as to Appellant’s procedural due process claim.
1.
Liberty Interest
Although
necessary

“[l]awful

rights,”

withdrawal
a

disappear.

or

prisoner’s

incarceration

limitation
right

to

of

brings

many

liberty

about

the

privileges

and

does

not

entirely

Price v. Johnson, 334 U.S. 266, 285 (1948); see also

In re Long Term Admin. Segregation of Inmates Designated as Five
Percenters,

174

F.3d

464,

468

(4th

Cir.

1999).

“[F]ederal

courts must take cognizance of the valid constitutional claims
of prison inmates.”

Turner v. Safley, 482 U.S. 78, 84 (1987).

In Sandin v. Conner, the Supreme Court declared that prisoners
have a liberty interest in avoiding confinement conditions that
impose

“atypical

and

significant

hardship

on

the

relation to the ordinary incidents of prison life.”
472, 484 (1995).

inmate

in

515 U.S.

The Court reaffirmed the Sandin standard in

Wilkinson v. Austin, 545 U.S. 209 (2005).
Recently, in Prieto v. Clarke, we held that Sandin,
Wilkinson,

and

our

precedent

“do[]

20

not

hold

that

harsh

or

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atypical
basis

Filed: 07/01/2015

prison

of

a

liberty

protection.”
2015).

conditions

in

Pg: 21 of 42

and

interest

of

themselves

giving

rise

provide

to

Due

the

Process

Prieto v. Clarke, 780 F.3d 245, 249 (4th Cir.

Rather, inmates must first establish that an interest in

avoiding onerous or restrictive confinement conditions “arise[s]
from

state

mandating

policies

periodic

omitted).

or

regulations”

review).

Id.

(e.g.,

(internal

a

regulation

quotation

marks

Because there is uncontroverted evidence that the

Department policy here mandates review of Appellant’s security
detention

every

30

days,

we

have

no

trouble

concluding

that

Appellant has met the first prong of his burden under Sandin and
its progeny.

The predominant question in this case, rather, is

whether Appellant established that the conditions he experienced
during his two decades in solitary confinement present atypical
and significant hardship in relation to the ordinary incidents
of prison life.
Whether

confinement

conditions

are

atypical

and

substantially harsh “in relation to the ordinary incidents of
prison life” is a “necessarily . . . fact specific” comparative
exercise.

Beverati v. Smith, 120 F.3d 500, 502, 503 (4th Cir.

1997); accord Ramirez v. Galaza, 334 F.3d 850, 861 (9th Cir.
2003) (“There is no single standard for determining whether a
prison hardship is atypical and significant, and the condition
or combination of conditions or factors . . . requires case by

21

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case,

fact

Filed: 07/01/2015

by

fact

Pg: 22 of 42

consideration.”

(alteration

(internal quotation marks omitted)).

at

253-54.

“baseline”

is:

First,

what

we

determine

constitutes

original)

In Prieto, we recognized

that the Sandin standard contains two parts.
F.3d

in

the

Cf. Prieto, 780

what

“ordinary

prison life” for this particular inmate?

the

normative

incidents

of

Id. at 253 (“What the

inmates in Beverati could expect to experience and what Prieto
can

expect

to

experience

differ

significantly. . . .

For

conditions dictated by a prisoner’s conviction and sentence are
the conditions constituting the ‘ordinary incidents of prison
life’

for

that

prisoner.”).

Then,

with

the

baseline

established, we determine whether the prison conditions impose
atypical and substantial hardship in relation to that norm.

See

id. at 254 (holding that Prieto’s death row confinement did not
impose

atypical

and

significant

hardship

in

relation

to

the

ordinary incidents of prison life).
a.
Normative Baseline for Atypicality
Although some of our sister circuits read our decision
in Beverati to imply that the typical conditions in the general
prison population provide the comparative baseline, see, e.g.,
Wilkerson v. Goodwin, 774 F.3d 845, 854 (5th Cir. 2014), Prieto
held that the general prison population is not always the basis
for

comparison

--

the

“baseline

22

for

atypicality”

may

shift

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depending on the “prisoner’s conviction and sentence.”

Prieto,

780 F.3d at 253.

Nonetheless, for the reasons explained below,

we

the

conclude

that

general

population

is

the

baseline

for

atypicality for inmates who are sentenced to confinement in the
general prison population and have been transferred to security
detention while serving their sentence.
In Beverati, the general population was the baseline.
There, inmates sentenced to the Maryland Penitentiary’s general
population

were

administratively

segregated

in

solitary

confinement because they possessed escape paraphernalia. 13

The

inmates complained that Maryland prison officials deprived them
of procedural due process.

To determine whether “the conditions

the prisoner[s] maintain[ed] [gave] rise to a liberty interest,”
we compared the inmates’ living conditions to “those incident to
normal

prison

life.”

Beverati,

120

F.3d

at

503.

Because

“applicable prison regulations indicate[d] that the conditions
in administrative segregation [we]re similar in most respects to
those

experienced

by

inmates

in

the

general

population,”

we

concluded that the inmates did not possess a liberty interest in
avoiding administrative segregation.

13

Id.

One of the Beverati inmates was originally placed in
disciplinary detention, but he was transferred to administrative
segregation after serving his disciplinary sentence.
See 120
F.3d at 501-02.

23

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But

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in

Prieto,

we

Pg: 24 of 42

held

that

using

the

general

population to gauge the ordinary incidents of prison life for a
death row inmate was improper.

See 780 F.3d at 252-54.

There,

a Virginia inmate on death row claimed a liberty interest in
avoiding

the

confinement.

“undeniably

severe”

Id. at 252, 254.

conditions

of

death

row

The district court interpreted

Beverati to convey that “the Fourth Circuit uses a facility’s
‘general prison population’ as the relevant baseline.”

Prieto

v. Clarke, No. 1:12-cv-1199, 2013 WL 6019215, at *1 (E.D. Va.
Nov. 12, 2013) (internal quotation marks omitted), rev’d, 780
F.3d 245 (4th Cir. 2015).

The court determined that housing

conditions on death row were atypical and significantly harsh
compared to the general population and, therefore, gave rise to
a

liberty

mandate[d]

interest.
that

We

all

reversed.

persons

Because

convicted

of

“Virginia
capital

law

crimes

are . . . automatically confined to death row,” Prieto, 780 F.3d
at 254, housing on death row was “normal prison life,” Beverati,
120 F.3d at 503.
liberty

interest

Therefore, Prieto was unable to assert a
in

avoiding

confinement

to

death

row.

See

Prieto, 780 F.3d at 253.
The

“conditions

dictated

by

a

prisoner’s

conviction

and sentence,” we stated, “are the conditions constituting the
‘ordinary incidents of prison life’ for that prisoner.”

Prieto,

780 F.3d at 254 (emphasis supplied) (quoting Sandin, 515 U.S. at

24

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484); accord Rezaq v. Nalley, 677 F.3d 1001, 1013 (10th Cir.
2012)

(“The

ordinary

incidents

of

prison

life

will

differ

depending on a particular inmate’s conviction . . . .” (internal
quotation

marks

omitted)).

Although

the

“nature

of

a[n

inmate’s] conviction” and the “length of [his] sentence” do not
“give rise to different liberty interests,” “state law mandates
[regarding]

the

confinement

conditions

to

be

imposed

on

offenders convicted of a certain crime and receiving a certain
sentence . . . are,
prison

life

(internal

definition,

such

for

by

offenders.”

quotation

confinement

marks

conditions

the

ordinary

Prieto,

omitted).

must

fall

A

(quoting

Sandin,

515

population

inmate’s

conditions

that

experience.
could

expect

U.S.

at

inmates

in

death

row

the

at

254

inmate’s
“‘expected

Likewise,

expectations

the

F.3d

of

Id. (emphasis omitted)

485).

confinement

780

within

perimeters’” of his death row sentence.

incidents

general

a

radiate

general
from

population

the

normally

See id. at 253-54 (“What the inmates in Beverati
to

experience

and

experience differ significantly.

what

Prieto

can

expect

to

It should come as no surprise

that the baseline does, too.”).
Although

the

general

prison

population

is

not

the

relevant atypicality baseline in all cases, it is the touchstone
in

cases

where

the

inmate

asserting

a

liberty

interest

was

sentenced to confinement in the general population and later

25

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transferred to security detention. 14
252.

See Prieto, 780 F.3d at

This view comports with Supreme Court opinions as well as

our precedent.
liberty

See Wilkinson, 545 U.S. at 223 (“Sandin found no

interest

protecting

against

a

30-day

assignment

to

segregated confinement because it did not present a dramatic
departure from the basic conditions of the [inmate’s sentence].”
(alteration

in

original)

(internal

quotation

marks

omitted));

Prieto, 780 F.3d at 254 (“Prieto, like any other inmate, can
only be deprived of that to which he is entitled.” (emphasis in
original)); Beverati, 120 F.3d at 501, 503; Gaston v. Taylor,
946

F.2d

340,

343

(4th.

1991)

(“[P]unishment

or

confinement

beyond that contemplated by the original sentence imposed can be
imposed only with procedures satisfying due process.”).
Because

it

is

uncontroverted

that

Appellant

was

sentenced to the general population, the general population is
the basis for our comparison here.

14

We previously took this approach in Walsh v. Corcoran,
No. 98-7853, 2000 WL 328019, at *7 (4th Cir. Mar. 29, 2000)
(unpublished)
(“[I]n
Beverati,
our
determination
that
administrative segregation did not present an atypical or
significant hardship involved using the incidents of prison life
that flowed from the inmates’ original sentences as a baseline
for comparison with conditions in administrative segregation.”).

26

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b.
Atypical and Significant Hardship
Having

identified

the

general

population

as

the

atypicality baseline, we turn to whether Appellant has met his
burden

of

proof.

demonstrate

his

constitutes

atypical

and

significant hardship in relation to the general population.

See

confinement

in

Appellant

security

must

detention

solitary

Sandin, 515 U.S. at 483; Prieto, 780 F.3d at 251 (placing burden
of proof on the inmate).

i.
To
atypical

and

understand

which

significant

in

confinement
comparison

conditions
to

the

are

general

population, we turn to Beverati and Wilkinson.
The Beverati inmates complained that the conditions of
their six-month administrative segregation amounted to atypical
and significant hardship.
Prison

regulations

See Beverati, 120 F.3d at 503-04.

specified

that

although

inmates

on

administrative segregation were confined to solitary cells, they
were permitted at least one hour of recreation outside their
cells

seven

inmates were.

days

per

week,

just

See id. at 504.

as

the

general

population

The inmates in administrative

segregation also had substantially the same access to prison
services and educational programming as the general population.

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See id. at 503.

Nevertheless, the inmates alleged that these

regulations

not

were

being

enforced

and

that,

in

fact,

the

inmates in administrative segregation experienced more onerous
conditions.

See

assertions

but

indicate[d]

that

id.

noted,
the

at

504.

“[t]he

We

credited

applicable

conditions

in

the

inmates’

prison

regulations

administrative

segregation

[we]re similar in most respects to those experienced by inmates
in the general population.”

Id. at 503.

Although the inmates

offered evidence that conditions in administrative segregation
were more burdensome “than those imposed on the general prison
population,” we concluded these conditions “were not so atypical
that

exposure

interest.

to

them

for

six

months”

implicated

a

liberty

Id. at 504.
Eight years after Beverati, the Supreme Court further

illuminated

the

atypicality

standard

in

Wilkinson.

The

Wilkinson petitioners were assigned to Ohio’s supermax facility
based

on

posed.

the

prison’s

evaluation

of

the

security

risk

they

A unanimous Court held that incarceration in a supermax

facility implicated liberty interests.

See Wilkinson, 545 U.S.

at 224.
The Court emphasized three factors in its analysis:
(1) the magnitude of confinement restrictions; (2) whether the
administrative segregation is for an indefinite period; and (3)
whether

assignment

to

administrative

28

segregation

had

any

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collateral consequences on the inmate’s sentence.

As for the

first factor, the Court found that incarceration in Supermax was
“synonymous
inmate’s

with

life

extreme

[was]

isolation”;

controlled

and

“every

aspect

monitored”;

of

inmates

an
were

“deprived of almost any environmental or sensory stimuli and of
almost

all

human

contact”;

and

indoors for one hour per day.

exercise

Id. 214.

was

permitted

only

Second, because inmates

were confined to a supermax facility for an indefinite period,
their

interest

magnified.

in

receiving

meaningful

procedural

review

See id. at 224 (“Unlike the 30-day placement in

Sandin, placement [in Supermax] is indefinite . . . .”).
third,

assignment

eligible

was

inmate

to

for

Supermax
parole

“disqualifie[d]

consideration.”

an

Id.

And

otherwise
The

Court

concluded that, “[w]hile any of these conditions standing alone
might

not

be

sufficient

to

create

a

liberty

interest,

taken

together they impose an atypical and significant hardship within
the correctional context.”
Notably,
point-by-point

the

Id.

Wilkinson

comparison

of

Court

the

did

not

conditions

engage
that

in

a

inmates

experienced in a supermax facility with the ordinary incidents
of prison life.

Nor did it determine whether the applicable

baseline was the general population or any another segregation
unit.

Instead, the Court concluded that incarceration in the

Supermax environment was so atypical and significant that it

29

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would

Doc: 46

give

baseline.”

rise

Filed: 07/01/2015

to

a

Pg: 30 of 42

liberty

interest

“under

any

plausible

Id. at 223.
ii.
In the case at hand, the district court held Appellant

had

no

liberty

interest,

reasoning

that

“[m]ost

of

the

conditions alleged [we]re nothing more than the usual aspects of
a solitary confinement facility”; “besides the length of his
confinement . . . [Appellant]

ha[d]

not

alleged

living

conditions nearly as bad as those present in Beverati”; and in
any case, Appellant was “subject to substantially more favorable
conditions than the inmates in Wilkinson.”

Incumaa v. Stirling,

No. 9:12-cv-03493, 2014 WL 958679, at *9-10 (D.S.C. Mar. 11,
2014) (internal quotation marks omitted).

The court further

reasoned:
Even
though
Beverati
predates
Wilkinson, at the very least it suggests
that the bar for proving an atypical and
significant hardship is quite high in the
Fourth Circuit.
Additionally, even since
Wilkinson the Fourth Circuit has cited
Beverati
in
rejecting
the
notion
that
inmates enjoy a protected liberty interest
in avoiding confinement in administrative
segregation, United States v. Daniels, 222
F. App’x 341, 342 n.* (4th Cir. 2007)
(unpublished) (per curiam) (“Extended stays
on administrative segregation . . . do not
ordinarily implicate a protected liberty
interest.” (citing Beverati, 120 F.3d at
502)), and courts in this district have
relied on Beverati in procedural due process
cases involving administrative segregation.

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Id. at *9 n.4 (citation omitted).
The district court was also persuaded by its belief
that Appellant’s stay in the SMU was not indefinite because the
“[Department’s] renunciation procedure puts the duration of his
confinement
Incumaa,

into

2014

WL

his

own

958679,

hands
at

to

*10.

a

significant

This,

the

degree.”

court

stated,

distinguished the present circumstances from those in Wilkinson.
See id.

The court also relied on the fact that, in contrast

with the Wilkinson inmates’ assignment to Supermax, Appellant’s
transfer to the SMU had no effect on his parole eligibility
because Appellant was already disqualified from this privilege
as a result of his sentence to life imprisonment without the
possibility of parole.

The district court was incorrect on two

fronts.
The district court misapplied Beverati and Wilkinson.
Beverati does not signal that “the bar for proving an atypical
and significant hardship is quite high in the Fourth Circuit.”
Incumaa, 2014 WL 958679 at *9 n.4.
neither

higher

nor

Rather, Beverati
Beverati

inmates

evidence

showed

lower

simply
failed
that

than

that

highlights
to

The bar in our circuit is

meet

a

of

failure

their

administrative

the

Supreme
of

burden

Court.

proof.

The

because

the

segregation

was

not

significantly worse than confinement in the general population.

31

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The district court’s conclusion that Appellant had no
liberty

interest

confinement

was

in
also

avoiding

the

erroneous.

onerous

conditions

Appellant

offered

of

his

evidence

demonstrating that conditions in the SMU are significantly worse
than in the general population and that the severity, duration,
and indefiniteness of his confinement implicate the concerns the
Supreme Court identified in Wilkinson.

See Wilkerson, 774 F.3d

at 854 (collecting cases that “considered the severity of the
restrictive conditions and their duration as key factors” in the
liberty interest analysis).
First,

Appellant

conditions

were

severe.

describing

the

severely

demonstrated
He

that

provided

restrictive

and

his

confinement

uncontested
socially

evidence
isolating

environment of the SMU in contrast to the general population -the near-daily cavity and strip searches; the confinement to a
small cell for all sleeping and waking hours, aside from ten
hours of activity outside the cell per month; the inability to
socialize with other inmates; and the denial of educational,
vocational, and therapy programs.
In

many

respects,

the

circumstances

of

Appellant’s

incarceration in the SMU mirror the experience of the Wilkinson
inmates in Ohio’s Supermax facility.

It may, in fact, be worse

in some respects: unlike the Wilkinson inmates, Appellant is
subject to a highly intrusive strip search every time he leaves

32

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his cell.

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Pg: 33 of 42

And, the Beverati inmates did not allege that they

were socially isolated to a similar degree.
Second, similar to the Wilkinson inmates’ confinement
in a supermax facility, Appellant’s confinement to the SMU is
extraordinary

in

its

duration

and

indefiniteness.

See

Wilkerson, 774 F.3d at 855 (concluding that inmate’s 39-year
indefinite solitary confinement was atypical and significant).
The district court relied on an unpublished opinion that stated,
“[e]xtended
ordinarily

stays

on

implicate

administrative
a

protected

segregation . . . do

liberty

interest.”

not

United

States v. Daniels, 222 F. App’x 341, 342 n.* (4th Cir. 2007).
But Daniels has no precedential weight, and it did not consider
an

exceptional

20-year

stint

confinement, as we do here. 15

in

highly

restrictive

solitary

Furthermore, the district court

wrongly concluded that Appellant’s stay in the SMU, although not
limited to a particular number of days, was not “indefinite”
because

Appellant

could

secure

release

affiliation with the Five Percenters.

15

by

renouncing

his

As we explained above,

In fact, it is not clear that Daniels had been
administratively segregated at all -- his interlocutory appeal
pending sentencing was dismissed for lack of jurisdiction. See
Daniels, 222 F. App’x at 342 (“The order Daniels seeks to appeal
is neither a final order nor an appealable interlocutory or
collateral order.
Accordingly, we dismiss the appeal for lack
of jurisdiction.”).

33

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renunciation

Filed: 07/01/2015

does

not

Pg: 34 of 42

guarantee

release

to

the

general

population.
Appellant was already ineligible for parole by virtue
of

his

sentence

before

he

was

transferred

to

the

SMU,

and

therefore his confinement does not implicate the third concern
identified in Wilkinson.

But that fact, in itself, does not

undermine the “material and substantial similarities” that this
case bears to Wilkinson.
liberty

interest

pursuant

Wilkerson, 774 F.3d at 855 (finding
to

Wilkinson

where

inmate

was

administratively segregated indefinitely in highly restrictive
solitary confinement conditions for nearly 39 years, even though
segregation did not affect the inmate’s parole eligibility).
Therefore,

Appellant

has

demonstrated

a

liberty

interest in avoiding solitary confinement in security detention.
2.
The Process Due
Because the district court determined Appellant had no
liberty interest in avoiding the SMU as a matter of law, it did
not

address

whether

the

Department’s

review

of

Appellant’s

ongoing confinement in the SMU satisfied procedural due process
standards.

Because we hold otherwise, we now address whether

the Department’s process meets minimum due process standards.
We conclude that there remains a triable dispute as to whether
the Department afforded Appellant a meaningful opportunity to

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understand and contest its reasons for holding him in solitary
confinement for the past 20 years.
a.
Particularly in the prison context, “the requirements
of

due

process

are

flexible

and

[call]

for

such

protections as the particular situation demands.”

procedural
Wilkinson,

545 U.S. at 224 (alteration in original) (internal quotation
marks omitted).

To determine whether procedural protections are

sufficient to protect an inmate’s liberty interests, we look to
Mathews v. Eldridge’s three factor test:
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.
424 U.S. 319, 335 (1976); see also Wilkinson, 545 U.S. at 224
(applying these factors).
In Wilkinson, the Supreme Court examined the procedure
that Ohio prisons employed to review an inmate’s confinement to
the Supermax unit.
and

comprehensive

notice

of

the

Ohio’s procedural mechanism was a complex
three-tier

basis

for

the

process
prison’s

that

afforded

transfer

inmates

decision

and

provided them an opportunity to contest the decision on at least

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See 545 U.S. at 215-17, 227.

And the inmate’s

administrative segregation was reviewed pursuant to this threetiered

process

at

least

once

every

year.

See

id.

at

217.

Applying the Mathews factors, the Court held that Ohio’s process
was sufficient to protect the inmates’ rights.

See id. at 228-

29.
Regarding the first factor, the Wilkinson Court noted
that

the

inmates’

private

liberty

interests

must

be

“evaluated . . . within the context of the prison system and its
attendant curtailment of liberties” because “[p]risoners held in
lawful confinement have their liberty curtailed by definition
[and] the procedural protections to which they are entitled are
more limited.”

Wilkinson, 545 U.S. at 225.

The second factor -- the risk of erroneous deprivation
-- favored the prison in Wilkinson because its review process
was comprehensive and multi-layered:
The . . . [p]olicy provides that an inmate
must receive notice of the factual basis
leading
to
consideration
for
[Supermax]
placement
and
a
fair
opportunity
for
rebuttal.
Our procedural due process cases
have consistently observed that these are
among
the
most
important
procedural
mechanisms
for
purposes
of
avoiding
erroneous deprivations.
Requiring officials
to provide a brief summary of the factual
basis for the classification review and
allowing the inmate a rebuttal opportunity
safeguards
against
the
inmate’s
being
mistaken for another or singled out for
insufficient reason.
In addition to having

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the opportunity to be heard at the Committee
stage, Ohio also invites the inmate to
submit objections prior to the final level
of review.
This second opportunity further
reduces the possibility of an erroneous
deprivation.
. . . .
If the recommendation is [Supermax]
placement,
Ohio
requires
that
the
decisionmaker provide a short statement of
reasons.
This requirement guards against
arbitrary
decisionmaking
while
also
providing the inmate a basis for objection
before the next decisionmaker or in a
subsequent
classification
review.
The
statement also serves as a guide for future
behavior.
Wilkinson, 545 U.S. at 225-26 (citations omitted).
As

to

the

third

factor,

concerning

the

state’s

interests, the Court concluded that the value of some aspects of
a traditional adversarial hearing -- particularly the right to
call witnesses -- was “doubtful in comparison to” the danger
they posed.

Wilkinson, 545 U.S. at 228.

encouraged

courts

to

procedures”

discussed

consult
in

Hewitt

the
v.

The Wilkinson Court

“informal,
Helms,

459

nonadversary
U.S.

460,

476

(1983), which were adequate to protect the prison’s interests in
security and order.
Supreme

Court

held

Wilkinson, 545 U.S. at 229.
that

a

nonadversarial

In Hewitt, the

process

may

be

sufficient so long as it provides “some notice of the charges
against [the inmate] and an opportunity to present his views to

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the prison official charged with deciding whether to transfer
him to administrative segregation.”

495 U.S. at 476.

b.
Applying

the

Mathews

factors,

we

conclude

Appellant

has demonstrated a triable dispute on his procedural due process
claim.

The

record,

viewed

in

the

light

most

favorable

to

Appellant, supports Appellant’s assertion that the Department’s
review process is inadequate and fails to honor the basic values
of procedural due process.

This record, bereft of any evidence

that Appellant has ever received meaningful review, stands in
contrast to Wilkinson and falls short of satisfying Hewitt.
i.
Because Appellant has already been held in solitary
confinement for 20 years, he has a significant private interest
in leaving the restrictive conditions in the SMU and serving
some part of his remaining life sentence outside of solitary
confinement.

Appellant’s private interest in this case, even if

“evaluated . . . within the context of the prison system and its
attendant curtailment of liberties,” is clear.
U.S. at 225.

Wilkinson, 545

Appellant’s life is severely restricted, and his

body is subjected to extraordinary intrusion on a regular basis.
United States v. Charters, 829 F.2d 479, 491 (4th Cir. 1987)
(“The right to be free of unwanted physical invasions has been
recognized

as

an

integral

part

38

of

the

individual’s

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constitutional freedoms . . . .”).

And as the Supreme Court has

made clear, “administrative segregation may not be used as a
pretext

for

indefinite

confinement

of

an

inmate.

Prison

officials must engage in some sort of periodic review of the
confinement of such inmates.”

Hewitt, 459 U.S. at 477 n.9; see

also Wilkerson, 774 F.3d at 856 (looking disfavorably upon a
prison’s

“rote

placing

a

repetition”

prisoner

confinement,

in

of

the

original

segregation

which

to

rendered

confinement . . . effectively

justification
support

continued

“his

indefinite”

for

solitary

(internal

quotation

marks omitted)).
ii.
The risk of erroneous deprivation is also exceedingly
high

in

this

Department
According
decision

case

has
to

on

for

only

Department
which

at
a

least

three

reasons.

single-layered
regulations,

inmates

are

the

candidates

First,

confinement
ICC
for

makes

the

review.
the

release.

sole
The

warden does not participate in the decision to release an inmate
unless the inmate files a grievance against the ICC’s decision
to continue detention.

This stands in contrast to the multi-

layered procedural mechanism described by the Wilkinson Court.
See Wilkinson, 545 U.S. at 226-27.
Second, the Department regulations do not require the
ICC to furnish a factual basis for its decisions.

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“provide

recommendation.”

the

J.A.

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inmate

139.

with

a

Moreover,

copy

in

of

its

practice,

the

Department’s process apparently only requires the ICC to give a
perfunctory explanation supporting its decision to continue to
hold Appellant

in

rubber-stamped
(figuratively

solitary

confinement.

Appellant’s
and

sometimes

The

incarceration
literally),

ICC

has

in

merely

the

listing

in

SMU
“rote

repetition” the same justification every 30 days.

Wilkerson,

774 F.3d at 856 (internal quotation marks omitted).

The policy

encourages “arbitrary decisionmaking” and risks the possibility
that

the

reason.”

ICC

may

single

out

Appellant

Wilkinson, 545 U.S. at 226.

classification

of

Appellant

is

“for

an

insufficient

Indeed, the ICC’s ongoing
especially

wanting

for

explanation in light of his nearly perfect disciplinary record
while in security detention.
Third,

the

Appellant

the

detention

before

respect
release.

to

his

right
the

Department
to
ICC

assigned

contest
makes
behavior

regulations
the
its

do

factual
decision

level

or

not

bases
--

his

grant

for

his

either

with

candidacy

for

The regulations merely provide, “[t]he inmate may be

present for the advancement/release review if security staffing
allows.”

J.A. 138 (emphasis supplied).

The fact that the ICC

is not required to provide a factual basis for its decision
further increases the “possibility of an erroneous deprivation”

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because Appellant has no “basis for objection” to support his
grievance against the ICC’s decision.

Wilkinson, 545 U.S. at

226.
Appellee

nonetheless

argues

that

its

review

process

“meets the flexible due process standard” approved in Wilkinson
because,

compared

to

inmates

confined

in

Ohio’s

Supermax

facility, “Appellant’s custody is reviewed much more frequently”
-- that is, every 30 days as opposed to once a year.
Br. 39.

Appellee’s

However, in view of Appellant’s uncontested evidence

demonstrating

the

inadequacy

of

the

Department’s

confinement

review, this argument falls flat.
iii.
The third Mathews factor -- state interest -- accounts
for the

Department’s

need

to

South Carolina’s prisons.

maintain

order

and

security

in

But as the Supreme Court noted in

Wilkinson and Hewitt, the prison’s interest does not eclipse
Appellant’s

well-established

right

to

receive

notice

of

the

grounds for his ongoing confinement and to present his rebuttal
to those grounds.
We do not decide whether prison review mechanisms must
be as extensive as in Wilkinson in order to pass constitutional
muster.

On

conclude

that

the
the

facts

presented

record

in

establishes

41

this
a

case,

however,

we

triable

question

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whether the Department’s review process was adequate to protect
Appellant’s right to procedural due process.
IV.
The

district

court’s

order

of

summary

judgment

is

affirmed as to Appellant’s RLUIPA claim and reversed as to his
procedural due process claim.

We affirm the district court’s

holding with respect to Appellant’s RLUIPA claim because he has
failed

to

show

that

his

religious

beliefs,

rather

than

his

choice to participate in a riot, are the proximate cause of his
continued solitary confinement.
order

on

Appellant

Appellant’s
has

We reverse the district court’s

procedural

demonstrated

a

due

liberty

process

claim

interest

in

because
avoiding

solitary confinement and Appellee has not proven as a matter of
law that it provided Appellant meaningful review.

We remand

this case for further proceedings consistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED FOR FURTHER PROCEEDINGS

42