Prieto - Prieto Brief

8/12/2019 Prieto - Prieto Brief

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Nos. 13-8021, 14-6226

IN THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ALFREDO PRIETO,

Plaintiff-Appellee,

v.

HAROLD C. CLARKE, Director; A. DAVID ROBINSON, Deputy Director,

E. PEARSON, Warden,

Defendants-Appellants.

On Appeal from the United States District Court for the Eastern District ofVirginia, No. 1:12-cv-1199 (Hon. Leonie M. Brinkema)

OPENING BRIEF FOR PLAINTIFF-APPELLEE

Michael E. Bern

Abid R. Qureshi

Katherine M. GigliottiDaniel I. LevyLATHAM&WATKINSLLP555 Eleventh Street, NW

Suite 1000

Washington, DC 20004(202) 637-2200

Counsel for Plaintiff-Appellee

Appeal: 13-8021 Doc: 33 Filed: 05/28/2014 Pg: 1 of 73


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UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DISCLOSUREOFCORPORATEAFFILIATIONS

ANDOTHERINTERESTS

Disclosures must be filed on behalf of all parties to a civil, agency, bankruptcy ormandamus case, except that a disclosure statement is notrequired from the UnitedStates, from an indigent party, or from a state or local government in a pro se case.

In mandamus cases arising from a civil or bankruptcy action, all parties to theaction in the district court are considered parties to the mandamus case.

Corporate defendants in a criminal or post-conviction case and corporate amici

curiae are required to file disclosure statements.

If counsel is not a registered ECF filer and does not intend to file documents other

than the required disclosure statement, counsel may file the disclosure statement inpaper rather than electronic form. Counsel has a continuing duty to update thisinformation.

No. 13-8021 Caption: Prieto v. Clarke

Pursuant to FRAP 26.1 and Local Rule 26.1,

Alfredo Prieto

(name of party/amicus)

who is Plaintiff-Appellee , makes the following disclosure:

(appellant/appellee/petitioner/respondent/amicus/intervenor)

1. Is party/amicus a publicly held corporation or other publicly held entity?YES x NO

2. Does party/amicus have any parent corporations? YES x NO

If yes, identify all parent corporations, including grandparent and great-

grandparent corporations:

3. Is 10% or more of the stock of a party/amicus owned by a publicly heldcorporation or other publicly held entity? YES x NO

If yes, identify all such owners:



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4. Is there any other publicly held corporation or other publicly held entity thathas a direct financial interest in the outcome of the litigation (Local Rule

26.1(b))? YES x NO

If yes, identify entity and nature of interest:

5. Is party a trade association? (amici curiae do not complete this question)YES x NO

If yes, identify any publicly held member whose stock or equity value could

be affected substantially by the outcome of the proceeding or whose claimsthe trade association is pursuing in a representative capacity, or state that

there is no such member:

6. Does this case arise out of a bankruptcy proceeding? YES x NOIf yes, identify any trustee and the members of any creditors committee:

Signature: /s/ Michael E. Bern Date: May 28, 2014

Counsel for: Alfredo Prieto

CERTIFICATE OF SERVICE*******************

I certify that on May 28, 2014 the foregoing document was served on all

parties or their counsel of record through the CM/ECF system if they are registeredusers or, if they are not, by serving a true and correct copy at the addresses listed

below:

/s/ Michael E. Bern May 28, 2014(signature) (date)



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TABLE OF CONTENTS

Page

DISCLOSURE OF CORPORATE AFFILIATIONS AND OTHER

INTERESTS ..................................................................................................... i

TABLE OF AUTHORITIES ..................................................................................... v

INTRODUCTION ..................................................................................................... 1

STATEMENT OF FACTS ........................................................................................ 6

VDOCs System for Managing Offenders ............................................ 6A.

Conditions of Confinement for Offenders Not Sentenced toB.

Death...................................................................................................... 9

Conditions of Confinement for Offenders Sentenced to Death .......... 10C.

Alfredo Prietos Classification to Death Row ..................................... 13D.

Mr. Prietos Claim and The District Courts Decision ....................... 14E.

SUMMARY OF ARGUMENT ............................................................................... 16

ARGUMENT ........................................................................................................... 19

I. VDOC MISCONSTRUES MR. PRIETOS CLAIM.................................... 19

II. MR. PRIETOS CONDITIONS OF CONFINEMENT IMPLICATE

A LIBERTY INTEREST PROTECTED BY THE DUE PROCESSCLAUSE. ....................................................................................................... 21

Mr. Prietos Conditions of Confinement Mirror Those that theA.

Supreme Court Has Found to Implicate a Liberty Interest UnderAny Plausible Baseline. ................................................................... 22

Mr. Prietos Conditions of Confinement Impose An AtypicalB.and Significant Hardship Relative to Ordinary Prison

Conditions in Virginia. ........................................................................ 27

VDOCs Belated Claim that the Existence of a Liberty InterestC.Turns On State Regulations Is Waived and Incompatible With

Precedent. ............................................................................................ 35



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1. VDOC Has Waived Any Argument That Mr. Prieto MustPoint to An Entitlement in State Regulations In Order to

Establish a Liberty Interest. ...................................................... 36

2. The Existence of a State-Created Liberty Interest Turnson the Nature of the Deprivation Caused By State Action,

Not the Language of State Regulations. ................................... 38

3. A Liberty Interest in Avoiding Permanent SolitaryConfinement Arises From the Constitution Itself. .................... 44

III. THE STATES AUTOMATIC ASSIGNMENT OF MR. PRIETO TO

INDEFINITE SOLITARY CONFINEMENT VIOLATED

PROCEDURAL DUE PROCESS. ................................................................ 50

Mr. Prieto Has an Important Private Interest in AvoidingA.Permanent Assignment to Solitary Confinement. ............................... 51

VDOCs Policy of Automatically Assigning Mr. Prieto toB.

Those Conditions Carries a Substantial Risk of Error. ....................... 51

The States Interest in Withholding Process Is Minimal. ................... 56C.

IV. THE DISTRICT COURTS ORDER DOES NOT VIOLATEFEDERAL RULE OF CIVIL PROCEDURE 65 OR THE PRISON

LITIGATION REFORM ACT. ..................................................................... 58

The District Courts Order Does Not Violate Federal Rule ofA.Civil Procedure 65(d). ......................................................................... 58

The District Courts Order Does Not Violate The PLRA. .................. 59B.

CONCLUSION ........................................................................................................ 61



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TABLEOFAUTHORITIES

Page(s)

CASES

Apanovitch v. Wilkinson,32 F. Appx 704 (6th Cir. 2002) ......................................................................... 34

Austin v. Wilkinson,

189 F. Supp. 2d 719 (N.D. Ohio 2002) .............................................................. 25


372 F.3d 346 (6th Cir. 2004) .............................................................................. 34


No. 4:01-cv-00071, 2008 U.S. Dist. LEXIS 24032(N.D. Ohio Mar. 12, 2008) ................................................................................. 35

Beverati v. Smith,120 F.3d 500 (4th Cir. 1997) ............................................................27, 30, 40, 42

Burrell v. Sowers,

No. PJM-09-1038, 2012 U.S. Dist. LEXIS 23758(D. Md. Feb. 24, 2012), affd, 474 F. Appx 995 (4th Cir. 2012) ...................... 30

Chappell v. Mandeville,706 F.3d 1052 (9th Cir. 2013) ............................................................................ 43

Conway v. Wilkinson,

No. 2:05-cv-820, 2005 U.S. Dist. LEXIS 31294 (S.D. Ohio Dec. 6, 2005) ...... 35

Davenport v. De Robertis,844 F.2d 1310 (7th Cir. 1988) ............................................................................ 48

Edwards v. City of Goldsboro,178 F.3d 231 (4th Cir. 1999) .............................................................................. 50

Frazier v. Coughlin,

81 F.3d 313 (2d Cir. 1996) ................................................................................. 43



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Page(s)Meachum v. Fano,

427 U.S. 215 (1976) ...................................................................................... 41, 47

In re Medley,134 U.S. 160 (1890) ...................................................................................... 45, 46

Morrison v. Garraghty,

239 F.3d 648 (4th Cir. 2001) .............................................................................. 60

Morrissey v. Brewer,408 U.S. 471 (1972) ............................................................................................ 39

Muth v. United States,

1 F.3d 246 (4th Cir. 1993) .................................................................................. 37

Peterkin v. Jeffes,

855 F.2d 1021 (3d Cir. 1988) ............................................................................. 34

Phillips v. Norris,320 F.3d 844 (8th Cir. 2003) .............................................................................. 28

Sandin v. Conner,

515 U.S. 472 (1995) .....................................................................................passim

Shields v. United States,

273 U.S. 583 (1927) ............................................................................................ 36

Singleton v. Wulff,

428 U.S. 106 (1976) ............................................................................................ 37

Smith v. Commonwealth,

248 S.E.2d 135 (1978) ........................................................................................ 54

Stallings v. Werholtz,492 F. Appx 841 (10th Cir. 2012) ..................................................................... 43

Trujillo v. Williams,465 F.3d 1210 (10th Cir. 2006) .......................................................................... 30



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Page(s)

Va. Code Ann. 19.2-264.2 .................................................................................... 54

Va. Code Ann. 19.2-264.5 .................................................................................... 54

Federal Rule of Civil Procedure 65(d)(1) ................................................................ 58

OTHER AUTHORITIES

Larry ODell, Virginias Death Row Population Down to 8, NBC 4Washington (Mar. 8, 2013), available athttp://www.nbcwashington.com/news/local/Virginias-Death-Row-

Population-Down-to-8-196284411.html ............................................................ 10

Rick Raemisch, Op-Ed.,My Night in Solitary,

N.Y. Times, Feb. 20, 2014, http://www.nytimes.com/2014/02/21/opinion/my-night-in-solitary.html?_r=0 ............................................................. 49

Richmond Times-Dispatch, Study ties inmates in solitary, self-harm,

Mar. 10, 2014, http://www.timesdispatch.com/study-ties-inmates-in-solitary-self-harm/article_fab4055c-5ff2-58c1-

b460-d0834efa3ae5.html .................................................................................... 48

Peter Scharff Smith, The Effects of Solitary Confinement onPrison Inmates: A Brief History and Review of the Literature,34 Crime & Just. 441 (2006) .............................................................................. 48

Smith v. Bounds,

5:72-CT-3052-F3052- F.P. C.-NC-0007-0001 (E.D.N.C. Mar. 25, 1997),available at http://www.clearinghouse.net/chDocs/public/PC-NC-0007-

0001.pdf .............................................................................................................. 60

Matt Zapotosky,In Va., Supreme Court decision on intellectual disabilitiescould aid two on death row, Washington Post (May 28, 2014), available

athttp://www.washingtonpost.com/local/crime/in-va-supreme-court-

decision-on-intellectual-disabilities-could-aid-two-on-death-row/2014/05/28/3261e7d8-e5e0-11e3-8f90-73e071f3d637_story.html ............ 54



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INTRODUCTION

In Wilkinson v. Austin, the United States Supreme Court held that the Due

Process Clause affords inmates a protected liberty interest in avoiding conditions

of confinement that impose an atypical and significant hardship in relation to the

ordinary incidents of prison life. 545 U.S. 209, 222-23 (2005) (citation omitted).

As the district court determined, plaintiff Alfredo Prietos conditions unmistakably

meet that standard. Unlike all other 39,000 inmates managed by the Virginia

Department of Corrections, the eight Virginia inmates currently sentenced to death

are automatically assigned to permanent solitary confinement in 71-square foot

cells until their sentence is reversed, commuted, or carried out nearly a decade or

more later. In Wilkinson, the Supreme Court unanimously determined that

conditions less severe than or identical to Mr. Prietos deprived [inmates] of

almost any environmental or sensory stimuli and of almost all human contact, and

were so harsh that they impose[d] an atypical and significant hardship under

any plausible baseline. Id.at 214, 224, 223. The same is necessarily true here.

Defendants, officials with the Virginia Department of Corrections (VDOC

or the Department), admitted below that Mr. Prietos conditions of confinement

were quite different from and more restrictive than the conditions that

prisoners ordinarily experience even in Virginias maximum-security prisons.

They do not seriously contest that Mr. Prietos opportunities for human contact,



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socialization, visitation, recreation, movement, education, and religious services

are dramatically circumscribed compared to the ordinary conditions of prison life

in Virginia. Instead, they attempt to minimize the severity of his confinement by

comparing it to other special housing conditions into which Virginia inmates

may be placed for only short periods, typically for committing disciplinary

violations. But Mr. Prieto has been permanently assigned to solitary confinement

for almost six yearsdespite a clean disciplinary record. And VDOCs attempt to

compare Mr. Prietos permanent conditions to temporary special housing

conditions (or solitary confinement generally), rather than the ordinaryincidents of

prison life, is inconsistent with this Courts precedents and should be rejected.

More fundamentally, the Departments comparison to special housing

underscores its failure to provide adequate procedures to Mr. Prieto. The

Department considers placement in temporary special housing so serious that it

provides an inmate a formal due process hearing before even a 30-day placement.

And if the inmate is assigned to special housing following that hearing, his

placement is reviewed by VDOC withinseven daysto evaluate the appropriateness

of his status. By contrast, Mr. Prieto has been in solitary confinement for over two

thousand days, during which time he has never received any opportunity to be

heard, his status has never been reviewed, and no Department official has ever

assessed whether his conditions are appropriate or necessary.



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it cannot reverse course now and ask this Court to apply a different one. Second,

the district court applied the correct test for evaluating whether a prisoner has

established a state-created liberty interest. State policy determines the ordinary

incidents of prison life in a particular jurisdiction. This Court has long recognized

that when state action imposes an atypical and significant hardship in relation to

those ordinary incidents of prison life, a prisoner has a state-created liberty interest

in avoiding them. Finally, an inmates assignment to permanent solitary

confinement in a 71-square foot cell with almost no human contact for a decade or

more is such a dramatic departure from the ordinary consequences of conviction

that the Due Process Clause itself requires adequate procedures before such

conditions may be imposed.

The Departments remaining arguments largely attack straw men of little

relevance to this case. VDOC repeatedly asserts that Mr. Prieto is seeking entry to

the general population. But Mr. Prieto made clear below that he is not seeking

entry into the general population, nor did the district courts order require it. The

Department also criticizes the district court for failing to provide prison officials

deference in classifying inmates. But the existence of a liberty interest is a pure

legal question on which VDOC does not receive deference. In any event, VDOCs

selective quotations notwithstanding, the overwhelming record shows that Mr.

Prietos placement is inconsistent with VDOCs own best practices, which deem it



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inadequate and improper to assign inmates to conditions of confinement on the

basis of their sentence alone. Indeed, if Mr. Prieto was assessed using the same

tool that the Department uses quite successful[ly] to classify all 39,000 other

inmates, his good conduct and advanced age would render him eligible for

assignment to far less harsh conditions of confinementsuggesting, at minimum,

that his permanent placement in uniquely severe conditions of solitary confinement

may be inappropriate.

Finally, the limited relief sought by Mr. Prieto and ordered by the district

court complies with Federal Rule of Civil Procedure 65 and the Prison Litigation

Reform Act (PLRA). The district court properly found that the Departments

failure to provide even the most basic procedural protections to Mr. Prieto before

permanently assigning him to uniquely harsh and uncommon conditions of

confinement violated due process. It then afforded the Department maximum

flexibility in remedying that violation.

* * *

The relief sought by Mr. Prieto is extremely modest. He seeks only the

same opportunity to be heard and individualized assessment that the Department

uses to determine the appropriate conditions of confinement for every other

Virginia inmate not sentenced to death. The cost of providing that process to Mr.

Prietowhich VDOC provides to tens of thousands of other inmates each yearis



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management. JA218. VDOCs overall goal is to move an offender to the lowest

security level in which he can be safely and effectively maintained. JA617, 765.

Following conviction, offenders are initially classified into conditions of

confinement varying from minimum security (level one) to maximum security

(level five). JA825.1 VDOC determines an offenders initial classification by

interviewing each offender about his specific needs, JA720, and assessing him

using a scoresheet that takes into account various considerations that the

Department has found to predict the offenders security needs, including (1) his

history of institutional violence; (2) the severity of his current offense; (3) the

severity of his prior offense history; (4) his escape history; (5) his length of time

remaining to serve; (6) his current age; (7) his prior felony conviction(s); (8)

whether he has a GED or high school diploma; (9) whether he was employed or

attending school for 6 months or longer at arrest; and (10) whether he had prior

success in lower levels of confinement, JA244, 912. An inmates initial

assignment is intended to be conservative, because VDOC knows less about how

that inmate will adjust to prison. JA718.

Offenders are then reclassified at least annually. JA776, 247. During

reclassification, VDOC places greater weight on an inmates behavior since being

1 Disruptive and assaultive inmates may be removed to Level S, a status

within level five that results in placement in segregation at Red Onion State

Prison. JA622; Opening Brief of Defendants-Appellants (AOB) 17.



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incarcerated, and affords the offenders crime and sentence less weight. JA256,

227.16-227.17, 912-14. Most offenders classifications change over time,

sometimes drastically. JA718-19, 762. An offender who remains infraction-free

for 1-2 years after incarceration often will be reclassified to a lower-security level

institution, which affords greater privileges, less controlled movement, and work

opportunities for the inmate, and lowers VDOCs costs. JA718-19, 903-06. Even

offenders convicted of capital murder and multiple homicides who are sentenced to

life without parole are reclassified from maximum-security facilities to less-

restrictive conditions of confinement. See, e.g., JA907-17. By contrast, even

offenders convicted of less severe crimes who are disruptive or violent in prison or

try to escape are reassigned to higher-security level prisons. See, e.g.,JA953-70.

Unlike all other offenders managed by VDOC, DROs are never individually

assessed or interviewed for purposes of classification. JA221, 262-63, 751-52.2

Instead, they are automatically and permanently assigned on the basis of their

sentence alone to solitary confinement in the segregated, death row unit of

Sussex I State Prison (SISP), a Level 5 maximum-security prison. JA747, 750.

Their behaviorgood or badis never taken into account. JA751-52. They are

2 DROs are automatically given a score of 99 on their Security Level

Scoresheet. JA747-49. VDOC arbitrarily picked the number 99 for record-

keeping purposes. JA749. The number has no other significance.



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never reclassified and the appropriateness of their status is never reviewed. JA221,

775-77, 781-82.

Conditions of Confinement for Offenders Not Sentenced to DeathB.

Even at a maximum-security prison like SISP, the conditions experienced by

general population offenders (GPOs) differ dramatically from those experienced

by DROs. JA835-36. Although GPOs are incarcerated in a high-security setting,

they are afforded opportunities to leave their cells throughout the day for a variety

of social, recreational, educational, religious, vocational, and other purposes.

GPOs enjoy outdoor recreation 4-5 times a week for 80-minute sessions, where

they may use basketball courts or congregate on a recreation yard that includes

jogging space and exercise equipment. JA297-99, 363, 918-19 (photos). GPOs

may also play basketball with other inmates in an indoor gym once a week.

JA299-300. GPOs also receive time for in-pod recreation, during which they are

released from their cells into the housing pods common area to socialize, play

cards or games, use the phone, or watch television together. JA301-04, 365.

Other opportunities for human contact and stimulation abound, as GPOs

enjoy the near-constant company of others. JA836. GPOs eat up to two daily

meals in a communal dining hall, where they may converse with other inmates.

JA271-72, 935 (photo). GPOs have access to educational, behavioral, or

vocational classes with their peers, and may attend congregational religious



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services in numerous denominations. JA306-11, 936-37 (photos). Employment

outside their living pod is available, including work in the kitchen, laundry, yard,

gymnasium, and library. JA304-05, 311. And GPOs are also afforded contact

visits with, inter alia, family, friends, religious officials, teachers and other

mentors on weekends and holidays, during which they can greet their visitors with

a hug and kiss, and meet face-to-face with them at a table. JA311-13, 385.

Conditions of Confinement for Offenders Sentenced to DeathC.

Eight inmates, including Mr. Prieto, are currently assigned to solitary

confinement on Virginias death row, a 44-cell housing unit separated from the

prisons general population. JA370. Some inmates have been assigned to death

row for more than 15 years. Larry ODell, Virginias Death Row Population

Down to 8, NBC 4 Washington (Mar. 8, 2013), available at

http://www.nbcwashington.com/news/local/Virginias-Death-Row-Population-

Down-to-8-196284411.html. Incarceration for DROs is a totally isolated

existence. DROs spend roughly 23 hours a day or more alone in a 71-square foot

cell. JA823, 938 (photo). On some days, they are not permitted to leave their cell

at all. A light remains on inside each DROs cell 24 hours a day, but is dimmed

somewhat at night. JA823, 835. Other lights within the housing unit always

remain on and perpetually shine into DROs cells. JA823. DROs have a small



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horizontal window covered by mesh wiring that is a window in name only.

JA835, JA938-39 (photos).

DROs typically leave their cells only to receive three ten-minute showers per

week or to experience recreation for one hour, five days per week. JA196, 823,

946-47. For recreation, DROs are placed in outdoor cages which contain concrete

floors and no exercise equipment, and are similar in size to their 71-square foot

cells. JA668, 950 (photo). DROs cannot do any exercise during recreation that

they cannot do in their cell. JA668. Before and after receiving recreation, DROs

are strip-searched, during which they must squat, lift their genitals, and cough.

JA368-69, 930, 943.

Opportunities for human contact are minimal. Each DRO is placed at least

two cells apart from other DROs. JA321. That distance, along with each cells

heavy metal door, substantially inhibits communication between inmates. JA824,

940 (photo). Visitation is highly restricted. DROs are not permitted even non-

contact visits with friends or non-immediate family members. JA392, 947. Visits

with immediate family may only take place through a pane of glass and telephone.

JA824, 951 (photo). And if an inmate has no qualifying immediate family, he

cannot receive visitors at all. A contact visit with immediate family, where a DRO

may sit with or hold hands with loved ones, is only permitted at the wardens

discretion. JA576, 947. None have been approved in the six years that Mr. Prieto



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has been incarcerated on death row. JA378, AOB21. The present warden

explained that he would approve a visit only if an inmate was on his deathbed.

JA283.

DROs have no access to the recreation yard or the gymnasium. JA275, 946.

They are not permitted in-pod recreation. JA324. They enjoy no physical access

to the library or law library, no access to congregational religious services, and no

access to classes of any kind. JA325-27, 373. They eat every meal alone in their

cell, and cannot work outside the pod. JA325-26, 944. To pass the monotony of

the day, like the prisoners at issue in Wilkinson,DROs may buy a small television

to be used in their cell. JA355-56, 835.

DROs conditions of confinement are more similar to what exist in other

segregated populations, such as disciplinary or administrative segregation.

JA669-70. Such assignments are generally temporary or short-term assignments

imposed as a result of offender misconduct. JA436. Before placement in

disciplinary or administrative segregation, an inmate must receive a formal due

process hearing. JA238-40, 449. Owing to the harsh nature of disciplinary

segregation, offenders may be assigned there for a maximum period of 30 days for

each major rule violation. JA239. If an offender has more than one disciplinary

sentence to serve, the inmate is given a rest period of 15 consecutive days

between sentences. Id. If an individual is assigned to administrative segregation,



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his status is reviewed every seven days for the first two months to ensure that it is

appropriate, and every 30 days thereafter if segregation continues. JA232.

Alfredo Prietos Classification to Death RowD.

Mr. Prieto was convicted of two counts of capital murder for homicides that

occurred in 1988. He has been confined to solitary confinement on death row at

SISP since October 30, 2008. JA822. Since being incarcerated at SISP, Mr.

Prieto, who is now nearly 50 years old, has been by all accounts a model

prisoner. JA840. He has maintained a clean disciplinary record for six years and

is described by VDOCs prison officials variously as polite, keeps his cell neat,

JA227.19-227.20, giving correctional officers no issues whatsoever, JA375, and

as not a disciplinary problem, JA338.

During discovery, VDOCs Director of Offender Management evaluated Mr.

Prieto using the same individualized assessment tool used to classify all other

inmates. On the basis of his good behavior at SISP and age, among other factors,

applying the best thinking of the department of corrections, he determined that

Mr. Prieto likely would be assigned to less harsh conditions if DROs were not

automatically assigned to solitary confinement. JA781; see JA777-81.3

3 VDOC suggests that Mr. Prietos evaluation was inaccurate because it omitted

Mr. Prietos prior conviction for escape. AOB55 n.14. But when classifyinginmates, VDOC considers relevant only an inmates attempted escape history

within the last five years. JA244. In its expertise, it considers Mr. Prietos



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The court next held that VDOCs automatic placement policy fails to

provide even the most basic procedural protections required by the Fourteenth

Amendment, and therefore fail[s] to comply with the demands of due process.

JA845-46. By neglecting to provide Mr. Prieto process that VDOC considers

important to classifying inmates appropriately, the court found VDOC created a

risk of erroneous placement in conditions that are more restrictive than

necessary. JA846.

The court entered the narrow injunctive relief sought by Mr. Prieto, which

afforded VDOC maximum flexibility in remedying the constitutional violation. In

particular, the court afforded VDOC the opportunity either (1) to provide Mr.

Prieto with an individualized classification determination using procedures that

are the same or substantially similar to the procedures used for all non-capital

offenders or (2) to vary the basic conditions there of confinement on death row,

if only slightly, such that confinement would no longer impose an atypical and

significant hardship on Mr. Prieto. JA850-51, 848. As the court explained, its

limited ruling did not entail a wholesale shift in Virginias penal policy,

particularly given that [t]he cost of compliance is limited by the very small class

of affected inmates. JA848.



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SUMMARYOFARGUMENT

The district court properly concluded that Mr. Prieto established a liberty

interest in avoiding placement in highly restrictive conditions of solitary

confinement. For six years, Mr. Prieto has spent 23 hours a day or more in a 71-

square foot cell with almost no opportunity for human contact. The Department

itself recognizes the severity of Mr. Prietos conditions, providing substantial

process to all other 39,000 inmates not sentenced to death before they may be even

temporarily placed for short periods in comparable conditions. Their failure to

provide even the most basic procedural protections to Mr. Prieto before placing

him in permanent solitary confinement violated due process.

I. VDOC misstates Mr. Prietos claim. He does not, and has never

sought, entry into the general population. At issue here is only whether he is

entitled to receive due process before Virginia confines him in permanent solitary

confinement. That is a purely legal question on which the Department receives no

deference.

II. Mr. Prieto has established that his permanent placement in highly

restrictive conditions of solitary confinement implicates a liberty interest protected

by the Due Process Clause. His conditions are either more severe than or identical

to conditions that the Supreme Court has already concluded are so harsh that they

impose an atypical and significant hardship under any plausible baseline. In



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addition, Mr. Prietos long-term conditions are sharply different from and more

severe than the ordinary conditions of prison life to which all other 39,000 Virginia

inmates are exposed. VDOCs invitation to compare Mr. Prietos permanent

conditions of confinement to other death-row offenders or short-term special

housing assignments that are, by definition, far removed from the ordinary

incidents of prison life in Virginia, is inconsistent with this Courts and the

Supreme Courts precedent and should be rejected.

VDOC claims that Mr. Prieto can establish a liberty interest only by pointing

to language creating an entitlement under state law. Having asked the district court

to apply a different test below, VDOC has waived this argument. In any event, the

Supreme Court has long abandoned that approach. Courts are now directed to

focus on the nature of the conditions to which a prisoner is subject, not the

language of state regulations. Under that test, Mr. Prieto possesses a state-created

liberty interest in avoiding conditions imposing an atypical and significant

hardship in comparison to the ordinary conditions of prison life.

Finally, Mr. Prietos permanent assignment to solitary confinement

implicates a liberty interest under the Due Process Clause itself. It is now well-

accepted that solitary confinement imposes severe and unique consequences even

when imposed for short periods. The imposition of permanent solitary

confinement for nondisciplinary reasons is radically different from the



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consequences that ordinarily follow from a convictioneven for the most serious

crimes. The Due Process Clause itself affords Mr. Prieto a liberty interest in

avoiding such uniquely severe confinement.

III. VDOC does not argue that Mr. Prietos automatic assignment to solitary

confinement would comply with due process. For good reason. The Supreme

Court has already stated that inmates have a meaningful interest in avoiding

inappropriate placement in uniquely severe conditions. And VDOCs officials

have acknowledged that assigning an inmate to conditions based on his sentence

alone increases the risk of inaccurate placement. Finally, VDOCs interest in

withholding process is minimal. Mr. Prieto is asking only for VDOC to apply the

same classification process that it already performs over tens of thousands of times

annually to classify every other inmate into appropriate conditions of confinement.

The resources involved in performing that classification are de minimus.

IV. The district courts injunction did not violate Federal Rule 65(d) or the

PLRA. The Court identified a specific procedural due process violation, and

entered an injunction narrowly tailored to that ongoing constitutional harm. In so

doing, it entered a limited remedy that provided the Department with maximum

flexibility to cure that constitutional harm.



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hardship.4 If VDOC provided that process and determined that Mr. Prietos

atypical and severe conditions were not warranted, nothing would prevent the

Department from continuing to segregate DROs from the general population, while

providing DROs like Mr. Prieto whose individual records support it greater

opportunity for human contact with each other, family, and friends. Nothing

would require VDOC to do away with death row. AOB58. Isolation in solitary

confinement is not the only alternative to integration into the general population.

See, e.g., AOB53-54 (noting many states permit some DROs to congregate

together).

The Department also repeatedly criticizes the district court for failing to

provide deference to prison officials. See, e.g., AOB31-34; 54-56. But VDOCs

only argument on appeal is a purely legal question: whether a liberty interest is

implicated by Mr. Prietos placement in permanent solitary confinement for nearly

six years with no end in sight. AOB2-3. VDOC receives no deference in making

that assessment (which, of course, it did not make anyways). And to the extent

that VDOC asserts that it should receive deference on its assertion that death-row

offenders are too dangerous to house in the general prison population, AOB54,

that question is not implicated by this case.

4 VDOC also could remedy the constitutional harm in this case by modifying Mr.

Prietos conditions so that a liberty interest is no longer implicated in their

avoidance.



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II. MR. PRIETOS CONDITIONS OF CONFINEMENT IMPLICATE ALIBERTY INTEREST PROTECTED BY THE DUE PROCESS

CLAUSE.

[T]he 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 the regulations regarding those conditions but the nature of those

conditions themselves in relation to the ordinary incidents of prison life.

Wilkinson, 545 U.S. at 223. Mr. Prietos automatic assignment to restrictive

conditions of confinement implicates a state-created liberty interest recognized by

the Due Process Clause for two reasons: (1) his conditions of confinement are

more harsh than or identical to those that the Supreme Court has held necessarily

implicate a liberty interest under any plausible baseline; (2) Mr. Prietos

conditions of confinement impose an atypical and significant hardship when

measured against the ordinary incidents of prison life in Virginia. For either

reason, he has a state-created liberty interest in avoiding automatic assignment to

permanent solitary confinement without due process.

Moreover, because Mr. Prietos permanent placement in solitary

confinement for nondisciplinary reasons is qualitatively different from the

consequences characteristically suffered by a person convicted of crime, he may

assert a liberty interest under the Due Process Clause itself.



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Mr. Prietos Conditions of Confinement Mirror Those that theA.

Supreme Court Has Found to Implicate a Liberty Interest Under

Any Plausible Baseline.

VDOC does not even attempt to contest the district courts determination

that Mr. Prietos conditions are eerily reminiscent of those at the maximum-

security prison in Wilkinson. JA835. The Supreme Court concluded in that case

that those conditions implicated a state-created liberty interest under any plausible

baseline. See Wilkinson, 545 U.S. 209. The identical result necessarily follows

here.

In Wilkinson, the Court found that various conditions at the Ohio State

Penitentiary (OSP) contributed to create an atypical and highly restrictive

environment: (1) Inmates must remain in their cells, which measure 7 by 14 feet,

for 23 hours per day. (2) A light remains on in the cell at all times, though it is

sometimes dimmed. (3) During the one hour per day that an inmate may leave

his cell, access is limited to one of two indoor recreation cells. (4) OSP cells

have solid metal doors with metal strips along their sides and bottoms which

prevent conversation or communication with other inmates. (5) All meals are

taken alone in the inmates cell instead of in a common eating area. (6)

Opportunities for visitation are rare and in all events are conducted through glass

walls. Id. at 214; see also id. at 224. In short, as the Court concluded, OSP



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inmates were subjected to extreme isolation and deprived of almost any

environmental or sensory stimuli and almost all human contact. Id. at 214.

The Court also found significant that (7) placement at OSP is indefinite

and, after an initial 30-day review, is reviewed just annually, as well as that (8)

placement disqualifie[d] an otherwise eligible inmate for parole consideration

while assigned to OSP. Id. at 224. As the Court explained, while any of these

conditions standing alone might not be sufficient to create a liberty interest, taken

together they impose an atypical and significant hardship. Id.

The conditions imposed by VDOC on offenders sentenced to death are either

indistinguishable from or more severe than those imposed at OSP in Wilkinson.

Like inmates at OSP, offenders sentenced to death are locked alone in their cells

for at least 23 hours each day. JA204. The lights never go out in his cell,

although they are scaled back during the overnight hours. JA835. Mr. Prieto

leaves his cell only to use a recreation cage for one hour, five days a week (or to

take a shower three times a week); on other days, he remains locked in his cell for

all 24 hours. JA204, 323, 823, 947. [P]laintiff is deprived of most forms of

human contact. Id. Mr. Prietos cell has a solid, metal door[], and DROs are

spaced out within the pod in a manner that substantially impede[s] any

communication among death row inmates. JA321, 410, 824. He eats all of his

meals alone in his cell. JA85, 204, 824. Opportunities for visitation are rare. No



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contact visit has been approved in years. JA206, 283-85, 350. Non-contact visits

are limited only to immediate familyif a DRO has anyand may be conducted

only by telephone through glass walls. See JA392, 350. In practice, visits are

extremely infrequent; most DROs have not received a single visitor over the past

year. JA366-67, 330-31.

Placement in these conditions is indefinite. At OSP, inmates could obtain

reclassification to less-restrictive facilities or reassignment to better conditions

within OSP. Wilkinson, 545 U.S. at 217, Joint Appendix 29, Wilkinson v, Austin,

545 U.S. 209 (2005) (No. 04-495), 2005 WL 273552 (U.S.) (WilkinsonJA). Mr.

Prieto, however, cannot. While DROs are already ineligible for parole prior to

their placement, the same was true of 90% of the inmates who were assigned to

OSP. SeeBrief for Petitioners 44, Wilkinson v. Austin, No. 04-495 (U.S. Jan. 26,

2005), 2005 WL 273552 (Wilkinson Petrs Br.) (noting that assignment to OSP

did not alter 90% of inmates eligibility for parole.) Indeed, Wilkinson was

decided nine years after Ohio had abolished parole for allpersons sentenced after

that time. Id.

It is little wonder, therefore, that the district court found that Mr. Prietos

dehumanizing conditions are eerily reminiscent of those at the maximum-security

prison in Wilkinson. JA835. The Supreme Court unanimously found those



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conditions to be harsh, especially severe, and synonymous with extreme

isolation. Wilkinson, 545 U.S. at 214, 224.

Indeed, Mr. Prietos conditions are even morerestrictive than those at OSP.

First, Mr. Prietos cell is almost 30% smaller than cells at OSP (71 vs. 98 square

feet). See Wilkinson, 545 U.S. at 214; JA343. Second, unlike Mr. Prieto, OSP

inmates could participate in numerous programs, including congregate

programming permitting contact with other inmates. Compare Austin v.

Wilkinson, 189 F. Supp. 2d 719, 731 (N.D. Ohio 2002) (noting inmate

participated in numerous programs); Wilkinson JA392 (noting cell-side

programming with GED, religious, and mental health leaders); id. (noting four

inmates who were in counseling session together) with JA325-27, 373. Third, the

recreation cells at OSP contained at least minimal exercise equipment and some

inmates were permitted to exercise with another inmate. Austin, 189 F. Supp. 2d at

724. The recreation cages for DROs at SISP contain no equipment and do not

permit any exercise that cannot be done in ones cell. SeeJA668. Finally, unlike

at OSP, where inmates were afforded an initial review of their placement after 30

days and annual opportunities to obtain reclassification to lower-security facilities,

DROs are permanently assigned to solitary confinement with no opportunity to

obtain reclassification.



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attempt to suggest that Mr. Prietos conditions are less severe than those at OSP.

For that reason alone, his conditions give rise to a liberty interest in their

avoidance. Id.at 224.

Mr. Prietos Conditions of Confinement Impose An Atypical andB.

Significant Hardship Relative to Ordinary Prison Conditions in

Virginia.

Mr. Prietos conditions of solitary confinement also implicate a liberty

interest because they impose an atypical and significant hardship relative to the

ordinary incidents of prison life in Virginia. Although the courts of appeals have

not reached consistent conclusions for identifying the baseline from which to

measure what is atypical and significant, Wilkinson, 545 U.S. at 223, this Court

has long explained that the ordinary incidents of prison life are established by the

conditions imposed on the general prison population. See Beverati v. Smith, 120

F.3d 500, 504 (4th Cir. 1997) (comparing inmates conditions in segregation to

those imposed on the general prison population to determine whether a liberty

interest was at issue); see also Malik v. Sligh, No. 5:11-1064-RBH-KDW, 2012

U.S. Dist. LEXIS 129211, at *16 (D.S.C. Aug. 3, 2012) ([T]he Fourth Circuit

uses the conditions imposed on the general population as the baseline for its

concession, but when pressed, the State backtracked. (emphasis added) (citationomitted)). Both Ohio and the United States ultimately took the position that

inmates lacked a liberty interest in avoiding placement at OSP. Id. The SupremeCourt therefore concluded that it [was] appropriate to address th[e] threshold

question of whether a liberty interest was implicated. Id.



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analysis under Wilkinson.); Phillips v. Norris, 320 F.3d 844, 847 (8th Cir. 2003)

(following Beverati and using conditions in the general population as the

baseline).

There can be little doubt that, as the district court held, Mr. Prietos

conditions are undeniably extreme and atypical compared to conditions in the

general population even at Virginias maximum-security prisons. JA835. After

extensively reviewing the undisputed record, including deposition testimony,

VDOC policies, photographic evidence, and an expert report, Judge Brinkema

concluded that the conditions experienced by general population inmates at SISP

differ in almost every meaningful respect from those experienced by Mr. Prieto.

JA836. She noted that GPOs spend much of their day outside their cell

participating in a range of recreational, social, educational and religious

experiences. See id; see also supra at 9-10. And they enjoy the near-constant

company of others. JA836. They are given 80 minutes of outdoor recreation with

other inmates four or five days per week, where they have access to a recreation

yard and outdoor basketball courts. They may play basketball with other GPOs in

a gymnasium. They eat 1-2 communal meals a day. They receive time for in-pod

recreation, when they may play games or socialize with other inmates. They may

visit the library or law library. They may attend and participate in group religious

and educational programming. Id. They may take advantage of behavioral,



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educational, or vocational classes. They are permitted weekly contact visits with

family and friends. And by avoiding disciplinary infractions, they can obtain

transfer to less-restrictive facilities where their privileges will be further improved.

By contrast, the court noted that DROs spend almost all 24 hours of every

day locked either inside their 71-square foot cells6or a similarly-sized recreation

cage where they can do no exercise that cannot already be done in their cells.

JA823; see also supra at 10-12. They cannot use the recreation yard or

gymnasium. They are not permitted in-pod recreation to socialize with other

DROs. They cannot visit the library or participate in group educational or

religious classes. They are prohibited from ever receiving visits from friends.

Even contact visits with immediate family are never approved. And unlike every

other inmateincluding others convicted of capital murder but not sentenced to

deaththey can never improve their conditions of confinement, not even by years

of good behavior.

It is not surprising, therefore, that VDOCs officials themselves

acknowledge that conditions for DROs are quite different and more restrictive

6 VDOC suggests that Mr. Prietos small cell compares favorably to GPOs, whoshare similarly-sized cells with other inmates. AOB23. But DROs are perpetually

confined in a 71-square foot cell or similarly-sized recreation cage. GPOs spendmuch of their days outside their cell, recreating, socializing, taking classes, and

visiting, and may socialize with a cellmate when they return. As SISPs wardenacknowledged, therefore, the impact of confinement in those cells is different. See

JA280-81.



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Wilkinson forecloses VDOCs argument that the baseline is a product of

what conditions are typical for inmates given their particular crime or sentence.

By holding that the conditions at OSP imposed an atypical and significant hardship

under any plausible baseline, the Supreme Court necessarily excluded OSPs

conditions themselves as a plausible baseline, even though various inmates were

placed directly into OSP as a result of being convicted of certain offenses. Id.at

223, 216.8 While confinement at OSP may have been typical for that small class

of individuals, just as confinement in solitary confinement is automatic for DROs

in Virginia, the Supreme Court had little difficulty finding that those conditions

imposed an atypical and significant hardship in relation to the ordinary incidents

of prison life. Id. at 222-23 (citation omitted;compare id.,with JA567 (defining

Mr. Prietos conditions as specialhousing (emphasis added)).

VDOCs contrary rule would dramatically complicate the inquiry into

whether a liberty interest is implicated and flood courts with claims far removed

from the underlying purpose of Wilkinsons test. Courts would be forced to

evaluate whether a liberty interest exists inmate by inmate, necessitating factual

development of the typical conditions corresponding to each sentence or crime and

the atypicality and severity of the departure in every individual case. Assignment

to SISP, for instance, might not implicate a liberty interest for those convicted of

8 VDOC is wrong, therefore, that Wilkinson involved only inmates from the

generalprison population. AOB47.



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That does not, of course, foreclose Virginia from making a different choice.

But Virginia cannot place classes of inmates into conditions imposing an atypical

and severe hardshipwhether because sentenced to death, convicted of particular

crimes, tied to gangs, disciplinary problems, or otherwiseand then define those

atypically severe conditions as ordinary for those penalized subclasses, thereby

evading the requirements of due process. Whatever the ordinary incidents of

prison life may encompass, they must be decided with reference to the particular

prison system at issue, and can only be truly ordinary when experienced by a

significant proportion of the prison population. Austin v. Wilkinson, 372 F.3d

346, 355 (6th Cir. 2004);see also Welch v. Bartlett, 196 F.3d 389, 394 n.2 (2d Cir.

1999) (doubting that conditions to which only 6% of New York inmates were

subject were typical of the ordinary incidents of prison life). This Court should

reject VDOCs invitation to render Wilkinsona dead letter for those whom a state

chooses to place in uniquely severe conditions of confinement.

None of the cases on which VDOC relies (AOB48-50) counsel otherwise.

Most of the court of appeals cases predate Wilkinson and its predecessor, Sandin v.

Conner, 515 U.S. 472 (1995), and are therefore of little relevance here. Peterkin v.

Jeffes, 855 F.2d 1021, 1023 (3d Cir. 1988), and Apanovitch v. Wilkinson, 32 F.

Appx 704, 707 (6th Cir. 2002), involved substantivedue process claims unrelated

to Mr. Prietos claim. Some cases even contradict VDOCs argument. InWilliams



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VDOCs own motion for summary judgment was much the same. It argued

that [a] liberty interest may arise (1) from the Constitution itself or (2) from an

expectation or interest created by state laws or policies. Defs. Mot. Summ. J. 8

(ECF No. 80). VDOC then defined that second category, noting that in Sandin,

the Supreme Court held that a liberty interest, guarded by due process, may arise

with respect to avoiding particular conditions of confinement imposed by the state

that rise to the level of an atypical and significant hardship. Id. (citation

omitted). It then argued that the Court should find that a protected liberty interest

does not exist because: (1) the restrictions imposed on death row do not exceed the

restrictions imposed on offenders in segregation or solitary confinement; (2) the

duration of confinement on death row is not indefinite; and (3) the duration of a

death row offenders sentence is not affected by his placement on death row. At

no point did VDOC argue that Mr. Prietos was required to identify language in

state laws or regulations to assert a liberty interest in this case.

Having failed to argue below that Mr. Prieto must point to language in a

particular state law or regulation in order to establish a liberty interest, VDOC

cannot do so now. See Singleton v. Wulff, 428 U.S. 106, 120 (1976) ([A] federal

appellate court does not consider an issue not passed upon below.);see, e.g.,Muth

v. United States, 1 F.3d 246, 250 (4th Cir. 1993) (Appellant may not argue a

continuing injury theory in this court because he did not raise the issue in the



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district court below.); see also Volvo Constr. Equip. N. Am., Inc. v. CLM Equip.

Co., 386 F.3d 581, 603 (4th Cir. 2004) (Absent exceptional circumstances we

do not consider issues raised for the first time on appeal.).

2. The Existence of a State-Created Liberty Interest Turns onthe Nature of the Deprivation Caused By State Action, Not

the Language of State Regulations.

Even if VDOCs argument was properly before this Court, it should be

rejected. By arguing that Mr. Prieto can prevail only by pointing to language in

state laws or regulations that create an entitlement to less severe conditions of

confinement, AOB2, the Department effectively asks this Court to revive a long-

since discredited approach to evaluating the existence of a liberty interest. That

proposal fundamentally misapprehends the nature and purpose of the modern test

into whether a state-created liberty interest exists, as well as the binding precedent

of the Supreme Court and this Court.

Prior to Sandin, the Supreme Court embraced an approach to examining due

process claims that shift[ed] the focus of the liberty interest inquiry to one based

on the language of a particular regulation, and not the nature of the deprivation.

Sandin, 515 U.S. at 481. By so doing, the Court encouraged prisoners to comb

regulations in search of mandatory language on which to base entitlements to

various state-conferred privileges, id.exactly what the Department accuses Mr.

Prieto of failing to do here. See AOB46 (Prietos claim fails because he



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cannot point to any Virginia statute or regulation that creates any entitlement on

the part of death-row inmates to be considered for [less onerous] housing .).

Under the resulting methodology, courts abandoned focus on whether inmates

could show[] that they had suffered a grievous loss of liberty retained even

after sentenced to imprisonment, Sandin, 515 U.S. at 480 (quoting Morrissey v.

Brewer, 408 U.S. 471, 481 (1972)), in favor of concentrating on whether

mandatory language and substantive predicates created an enforceable expectation

that the State would produce a particular outcome with respect to the prisoners

conditions of confinement, id.at 481.

In Sandin, the Supreme Court recognized that that approach to identifying

liberty interests was both over- and under-inclusive. First, prisoners could

establish a liberty interest in avoiding relatively insignificant deprivations by

pointing to mandatory language in state regulations. See id.at 483 (noting cases in

which inmates claimed liberty interests in obtaining tray lunches rather than sack

lunches, receiving paperback dictionaries, and so on). Second, states could avoid

creation of liberty interests by having scarcely any regulations, or by eschewing

mandatory entitlements, even when the deprivation was severe. Id.at 482.

As the SandinCourt recognized, the search for a negative implication from

mandatory language in prisoner regulations ha[d] strayed from the real concerns

undergirding the liberty protected by the Due Process Clause. Id. at 483. As a



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result, the Supreme Court definitively abrogated the methodology of parsing the

language of particular regulations in order to identify a state-created liberty

interest. Wilkinson, 545 U.S. at 222. Instead, it returned to a focus on whether the

inmate could point to a deprivation of real substance relative to the ordinary

conditions of imprisonment that followed from state law or policy. Wolff v.

McDonnell, 418 U.S. 539, 557 (1974).

That is how the Supreme Court understands its test. See Wilkinson, 545 U.S.

at 223 (After Sandin, it is clear that the touchstone of the inquiry into the

existence of a protected, state-created liberty interest in avoiding restrictive

conditions of confinement is not the language of regulations regarding those

conditions but the nature of those conditions themselves in relation to the

ordinary incidents of prison life. (emphasis added) (quoting Sandin, 515 U.S. at

484). That is how this Court has understood it. See Beverati v. Smith, 120 F.3d

500, 502-03 (4th Cir. 1997) (In order to determine whether the inmates possessed

a liberty interest, we must compare the conditions to which they were exposed in

administrative segregation with those they could expect to experience as an

ordinary incident of prison life.). That is how the United States has understood it.

See Brief for the United States 8, Wilkinson v. Austin, No. 04-495 (Jan. 28, 2005)

([The Supreme Court] held in Sandin that state action creates a liberty interest

when it imposes atypical and significant hardship on the inmate in relation to the



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ordinary incidents of prison life . (citation omitted)). And that is how the

Department understood itat least until this appeal. See supraat 36-38.

That focus does not sever the inquiry from one tethered to state prerogative.

State policywhether the product of state statutes, regulations, policies, or other

state actionsets the baseline conditions that follow from a criminal conviction

within that jurisdiction. See, e.g., Wolff, 418 U.S. at 557(ordinary right to good

time credits established by Nebraska law); Meachum v. Fano, 427 U.S. 215, 228

(1976) (Massachusetts policy afforded prison officials discretion to transfer

[inmates] for whatever reason or for no reason at all to maximum-security prison).

Only when state action imposes atypical and significant hardships in relation to

those ordinary incidents of prison life is a state-created liberty interest in their

avoidance implicated. But the day is long past when states can impose a severe

and atypical deprivation in relation to those ordinary conditions so long as the

inmate cannot point to suitable language in state laws or regulations that create an

entitlement to avoid it. Here, for reasons explained supra, Section II.B, VDOC

cannot seriously dispute that Mr. Prietos permanent placement in atypical and

severe conditions of solitary confinement without any process is a dramatic

departure from the ordinary incidents of prison life that Virginia has established for

those convicted of crime.



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Both the Supreme Court and this Courts application of Sandin reflects these

principles. In Wilkinson, the Court explained that evaluating whether a state-

created liberty interest had arise[n] from an expectation or interest created by state

laws or policies, required the Court to determine if assignment to OSP imposes

atypical and significant hardship on the inmate in relation to the ordinary incidents

of prison life. 545 U.S. at 221, 223 (quoting Sandin, 515 U.S. at 484). In finding

a liberty interest, the Court did not point to the language of any state regulations or

policies, but focused solely on the nature of the deprivation imposed on OSPs

inmates. See id.at 221-24.

This Court likewise has focused solely on whether state regulations or

policies have imposedan atypical and severe hardship in relation to ordinary prison

life in that state. See Beverati, 120 F.3d at 503 ([T]o determine whether the

inmates possessed a liberty interest, we must compare the conditions to which they

were exposed in administrative segregation with those they could expect to

experience as an ordinary incident of prison life.); Kitchen v. Upshaw,286 F.3d

179, 186 (4th Cir. 2002) (evaluating whether denial of work-release status

imposed on [the prisoner] an atypical and significant hardship in relation to the

ordinary incidents of prison life (quoting Sandin, 515 U.S. at 484)); McNeill v.

Currie, 84 F. Appx 276, 277 (4th Cir. 2003) (liberty interest established when:

(1) the conditions exceed the sentence imposed in such an unexpected manner as



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to give rise to protection by the Due Process Clause or (2) the confinement creates

an atypical or significant hardship in relation to the ordinary incidents of prison

life).

Other courts of appeals have likewise understood Sandinto return the focus

to the nature of a prisoners deprivation, not the language of state regulations. See,

e.g.,Chappell v. Mandeville, 706 F.3d 1052, 1064 (9th Cir. 2013) (In applying

Sandin our decisions have focused only on the atypical and significant

hardship test, even in the face of relevant prison regulations.); Stallings v.

Werholtz, 492 F. Appx 841, 844 (10th Cir. 2012) (While a liberty interest may

arise from an expectation or interest created by state laws or policies, we may not

parse the language of prison regulations as part of this inquiry; rather we look to

the nature of the conditions themselves in relation to the ordinary incidents of

prison life. (citation omitted)); Knowlin v. Heise, 420 F. Appx 593, 596 (7th Cir.

2011) ([A] liberty interest may arise from an expectation created by state laws or

policies, in which the inquiry is whether the conditions facing a prisoner imposed a

hardship atypical to the ordinary incidents of prison life.). VDOC relies on

Frazier v. Coughlin, 81 F.3d 313 (2d Cir. 1996), for the contrary proposition, see

AOB43-45, but that case is inconsistent with the weight of authority. More

importantly, it is incompatible with the precedent of this Court and the Supreme

Court.



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VDOCs approach would produce perverse consequences, presumably

guaranteeing procedural protections as a matter of constitutional law to inmates

placed into temporary conditions of segregation, while denying any protection to

the few inmates within a jurisdiction whose duration and degree of atypical

confinement is most severe. But see Marion v. Columbia Corr. Inst., 559 F.3d

693, 697 (7th Cir. 2009) (courts should determine whether cognizable liberty

interest exists by analyzing the combined import of the duration of the

segregative confinement and the conditions endured by the prisoner during that

period). Moreover, VDOCs approach would create detrimental incentives for

states to avoid the creation of liberty interests by imposing mandatory deprivations

on categories of inmates, rather than affording prison officials discretion to follow

their judgment in individual cases. That vision would radically stray[] from the

real concerns undergirding the liberty protected by the Due Process Clause.

Sandin, 515 U.S. at 483. It should not be and is not the law.

3. A Liberty Interest in Avoiding Permanent SolitaryConfinement Arises From the Constitution Itself.

Even if this Court believed that Mr. Prietos permanent placement in solitary

confinement did not give rise to a state-created liberty interest, it would give rise to

a liberty interest under the Constitution itself. Although a valid criminal

conviction and prison sentence extinguish a defendants right to freedom from

confinement, Vitek v. Jones, 445 U.S. 480, 493 (1980), a prisoner exposed to



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sentence. See id.at 170 (noting that English statutes imposed solitary confinement

as a further terror and [a] peculiar mark of infamy to be added to the punishment

of death); id. (American solitary confinement intended to mark [those subject to

it] as examples of the just punishment of the worst crimes of the human race).

The United States similarly has recognized that placement in solitary

confinement is radically unlike the ordinary consequences suffered by one

convicted of crime. In a brief filed inMeachum v. Fano, Solicitor General Robert

Bork explained:

[S]olitary confinement is radically unlike the normal

conditions in which a prisoner is placed. Its basic

ingredient is isolation from human contact, an isolationthat affects an inmate psychologically as well as

physically. Solitary confinement thus produces a lossof freedom apart from that taken away by incarceration in

general, in even the most secure institutions. In view

of the nature of solitary confinement it could be arguedthat it is so great a change in the quality of life, beyond

whatever conditions were authorized by the originaljudgment of conviction, that it produces a loss of

liberty even if there is no rule or settled course ofpractice reserving its use for prisoners who have violated

the institutions rules.

Brief for the United States 22 n.15, Meachum v. Fano, No. 75-252 (U.S. Jan. 26,

1976), 1976 WL 181738. For that reason, the United States distinguished between

an inmates liberty interest in avoiding placement in solitary confinement, and an

inmates lesser interest in avoiding transfer between a lower and maximum-

security prison. See id. at 21-23; compare also Wilkinson, 545 U.S. at 221-22



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(no liberty interest arising from Due Process Clause itself in transfer from low- to

maximum-security prison (citing Meachum, 427 U.S. at 225)), with Wolff, 418

U.S. at 571 n.19 ([S]olitary confinement represents a major change in the

conditions of confinement and there should be minimum procedural safeguards

as a hedge against arbitrary determination of the factual predicate for imposition of

the sanction.).

The permanent, long-term solitary confinement at issue in this case is

substantially different from and harsher than the kind of short-term disciplinary or

administrative segregation that exists in many jurisdictions. Even for a major

violation of prison rules, Virginia authorizes placement in disciplinary segregation

only for 30 days, and only then after a formal due process hearing. JA239. By

contrast, Mr. Prieto has been placed in solitary confinement for six yearswithout

having committed a single disciplinary infraction. Unlike the conditions at issue in

Wilkinsonor Sandin, Mr. Prietos conditions are permanent and unavoidable. He

has no opportunity to show that his conditions are unnecessary and no opportunity

to avert his uniquely severe confinement through good behavior.

It is well-established that the effects of Mr. Prietos long-term solitary

confinement are fundamentally different in kind from the consequences of

imprisonment that follow for all 39,000 other inmates in Virginia. [I]solating a

human being from other human beings year after year or even month after month



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can cause substantial psychological damage, even if the isolation is not total.

Davenport v. De Robertis, 844 F.2d 1310, 1313 (7th Cir. 1988). Indeed, the

undisputed expert report in this case described solitary confinement as a place of

constant mental agony that causes severe and deleterious psychological harm,

and explained that individuals subjected to prolonged periods of solitary

confinement generally experience difficulties with thinking, concentration and

memory, difficulties with sleep regulation, intrusive and obsessional

preoccupations, and dissociative episodes. JA406, 424. Those findings accord

with myriad studies concluding that prisoners in solitary confinement routinely

suffer from heart palpitations, impaired concentration, lethargy, depression,

anxiety, and hallucinations, Peter Scharff Smith, The Effects of Solitary

Confinement on Prison Inmates: A Brief History and Review of the Literature, 34

Crim & Just. 441, 488-94 (2006), and are so damaged by the experience that they

are nearly seven times more likely to try to hurt or kill themselves than other

inmates, Richmond Times-Dispatch, Study ties inmates in solitary, self-harm, Mar.

10, 2014, http://www.timesdispatch.com/study-ties-inmates-in-solitary-self-

harm/article_fab4055c-5ff2-58c1-b460-d0834efa3ae5.html;10

see also Davenport,

10 In Wilkinson, a group of amici psychiatrists and psychologists noted that [n]o

study of the effects of solitary or supermax-like confinement that lasted longer than60 days failed to find evidence of negative psychological effects. Brief of

Professors and Practitioners of Psychology and Psychiatry 4, Wilkinson, No. 04-



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844 F.2d at 1316 (noting existence of plenty of medical and psychological

literature concerning the ill effects of solitary confinement).

Numerous correctional officials have themselves acknowledged that solitary

confinement imposes consequences different in kind and more severe than

ordinary confinement. After spending only twenty hours in solitary confinement,

the current head of the Colorado Department of Corrections described feeling

twitchy and paranoid and reported that he would lose his mind from long-term

confinement. Rick Raemisch, Op-Ed.,My Night in Solitary, N.Y. Times, Feb. 20,

2014, http://www.nytimes.com/2014/02/21/opinion/my-night-in-

solitary.html?_r=0. Even Mr. Prietos own warden, who is a defendant in this

case, has acknowledged that there is real importance to getting out and being

with other people, I agree, and not being 24/7 in a cell. I would even say in my

readings about prisoner war deprivation, being separated and alone from human

contact, that weas humans, we dont survive very well that way with lack of

human contact. JA282.

In short, there is little serious debate that placement in permanent, long-term

solitary confinement imposes consequences radically unlike those that are

characteristically suffered by a person convicted of crime. Thompson, 490

U.S. at 460 (citation omitted). Because permanent solitary confinement for a

495 (U.S. Mar. 3, 2005), 2005 WL 539137. Mr. Prieto has been in solitary

confinement for over 33 timesthat time period.



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decade or more is plainly not within the terms of confinement ordinarily

contemplated by a prison sentence, it gives rise to a liberty interest that is

independently protected by the Due Process Clause. Id.at 461 (quoting Hewitt

v. Helms, 459 U.S. 460, 468 (1983)). That does not prevent Virginia from

imposing such harsh conditions. But the Due Process Clause requires it to provide

adequate procedural protections before doing so to ensure that such uniquely

severe confinement is necessary and appropriate. Wilkinson, 545 U.S. at 224.

III. THE STATES AUTOMATIC ASSIGNMENT OF MR. PRIETO TOINDEFINITE SOLITARY CONFINEMENT VIOLATED

PROCEDURAL DUE PROCESS.

VDOC does not challenge the district courts second holding: that if a liberty

interest is implicated in this case, VDOCs fail[ure] to provide even the most

basic procedural protections before automatically assigning DROs to permanent

solitary confinement violates due process. JA844. The issue is not presented in

VDOCs Issues Presented for Review, seeAOB2-3, nor does VDOC argue that

it provided the process due under the familiar framework set out by Mathews v.

Eldridge, 424 U.S. 319 (1976). See Wilkinson, 545 U.S. at 224-30. That results

in the abandonment of [this argument] on appeal. Grice v. Baltimore County, 354

F. Appx 742, 744-745 (4th Cir. 2009) (citingEdwards v. City of Goldsboro, 178

F.3d 231, 241 n.6 (4th Cir. 1999)). Even if VDOC has not waived this argument,



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the district court properly held that VDOCs failure to provide Mr. Prieto with any

process does not comply with the requirements of due process.

Mr. Prieto Has an Important Private Interest in AvoidingA.

Permanent Assignment to Solitary Confinement.

In Wilkinson, the Supreme Court affirmed that prisoners have a genuine

interest that is more than minimal in avoiding inappropriate placement in

atypical and significant conditions of confinement. 545 U.S. at 225. The private

interest implicated here is even more substantial because the duration of Mr.

Prietos confinement and the restrictiveness of his conditions exceed that at issue

in Wilkinson. See supra at 25. While OSPs inmates were eligible for

reclassification at least annually, Mr. Prietos segregation in virtual isolation is

permanent. Moreover, OSPs inmates were eligible upon good behavior to earn

access to greater freedom and privileges within OSP, such as more phone calls,

longer visits, broader TV privileges, shared recreation with another inmate, and the

like, Wilkinson Petrs Br. at 10-11. Mr. Prieto is not. His interest in avoiding

unnecessary placement in solitary confinement is therefore substantial.

VDOCs Policy of Automatically Assigning Mr. Prieto to ThoseB.

Conditions Carries a Substantial Risk of Error.

Appellants automatic assignment of persons sentenced to death to atypical

and restrictive conditions of confinement carries a substantial risk of error that

could be mitigated through additional and readily available procedural safeguards.



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As Appellants acknowledge, Mr. Prieto was provided with no opportunity to be

heard prior to his assignment, no opportunity for rebuttal of his assignment, no

individualized assessment, and no opportunity for review or reclassification.

AOB17. Instead his permanent assignment to segregation was an automatic

consequence of his death sentence. JA196.

That failure to provide process carries a serious risk of error. VDOC

considers it inappropriate to look solely at an inmates sentence when determining

the appropriate conditions of confinement for all 39,000 inmates not sentenced to

deathincluding others convicted of capital murder, just like Mr. Prieto. See

JA733 (If someone comes in and all we know about them is that they have got

100 years and thats all were basing their classification on, I think thats fairly

limited. [T]he more things you know about someone, the better youre going to

get them placed at an appropriate institution .); JA734 ([K]nowing more and

looking at a variety of factors is going to ensure better classification.); JA782

([Y]ou do not want to look at just one element. I think looking at a variety of

elements for classification is most appropriate.); JA625-26 (not sufficient to

classify inmates based on sentence alone).11

Indeed, VDOCs own Director of

Offender Management Services acknowledged that if Mr. Prieto was eligible for

11 For that reason, VDOC assigns some individuals serving shorter sentences for

driving on suspended licenses to maximum-security, AOB20, while othersconvicted of multiple counts of capital murder and sentenced to life without parole

are assigned to less-restrictive conditions of confinement, JA907-17.



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confinementevidence which, moreover, they weigh more heavily relative to an

offenders initial sentence over time. Id.

VDOC suggests that its differential treatment of those sentenced to death is

justified because a jury must find one of two aggravating factors before a death

sentence is imposed: either that the offender probably would commit criminal acts

of violence that would constitute a continuing serious threat to society, or that his

offense was outrageously or wantonly vile. Va. Code Ann. 19.2-264.2. But

VDOCs own practice is incompatible with this post-hoc justification for

differential treatment. Even after finding one or both aggravating factors, a

Virginia jury or judge may decide not to impose the death sentence. See Smith v.

Commonwealth, 248 S.E.2d 135, 150 (1978); Va. Code Ann. 19.2-264.5. In such

cases, VDOC assigns those inmates to the general population and affords them the

same classification procedures as every other inmateeven though the jury or

judge found the identical aggravating factors met. Moreover, VDOCs officials

repeatedly acknowledged that they had no idea how Virginia juries are instructed

to determine whether to recommend a death sentence. See, e.g., JA460, 509. As

that makes clear, VDOC does not actually treat inmates differently on the basis of

a jurys findings regarding aggravating factors.

VDOC also claims that extensive testimony established the unique

dangerousness of inmates sentenced to death. In fact, however, Director Clarke



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himself expressly agreed that there are individuals within death row who are less

of a security risk than particular individuals in the general population. JA657.12

The latter, however, are afforded individualized assessment and abundant

opportunities to improve their conditions of confinement, while DROs remain

permanently confined in uniquely severe conditions. VDOCs senior officials also

acknowledged the obvious propositions that every individual offender is different,

see, e.g., JA652-53, 656-57, 474; some DROs exhibit better behavior than

individuals in the general population, JA652-53, 656-57; not all DROs are the

same security risk, seeJA288-89, 652-53, 655-56; some DROs could handle less-

restrictive conditions without creating a security risk, JA286, and so on. That is

why VDOCs experts have long relied on individual assessment to identify the

appropriate conditions of confinement for every other Virginia offender, and

12 VDOC argues that DROs have nothing to lose. AOB15, 30. But a

Documents

Prieto - Prieto Brief