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Nos. 13-8021, 14-6226
IN THE UNITED STATES COURT OF APPEALSFOR 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 THEEASTERN DISTRICT OF VIRGINIA (Hon. Leonie M. Brinkema) (1:12-cv-1199)
OPENING BRIEF OF DEFENDANTS-APPELLANTS
MARK R.HERRINGAttorney General of Virginia
CYNTHIA E.HUDSONChief Deputy Attorney General
LINDA L.BRYANT (VSB#35010)Deputy Attorney General,
Public Safety & Enforcement
RICHARD C.VORHIS(VSB #23170)
Senior Assistant Attorney [email protected]
KATE E.DWYRE(VSB # 82065)Assistant Attorney [email protected]
STUART A.RAPHAEL (VSB #30380)Solicitor General of Virginia
TREVOR S.COX (VSB #78396)Deputy Solicitor General
Office of the Attorney General
900 East Main StreetRichmond, Virginia 23219(804) 786-7240 Telephone(804) 371-0200 Facsimile
Counsel for Appellants
March 24, 2014
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UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
DISCLOSURE OF CORPORATE AFFILIATIONS AND OTHER INTERESTS
Disclosures must be filed on behalf of all parties to a civil, agency, bankruptcy or mandamuscase, except that a disclosure statement is not required from the United States, 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 the action in the district court are considered parties tothe 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 in paper rather thanelectronic form. Counsel has a continuing duty to update this information.
No. __________ Caption: __________________________________________________
Pursuant to FRAP 26.1 and Local Rule 26.1,
______________________________________________________________________________(name of party/amicus)
______________________________________________________________________________
who is _______________________, makes the following disclosure:
(appellant/appellee/petitioner/respondent/amicus/intervenor)
1. Is party/amicus a publicly held corporation or other publicly held entity? YES NO
2. Does party/amicus have any parent corporations? YES 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 held corporation orother publicly held entity? YES NO
If yes, identify all such owners:
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13-8021 Alfredo Prieto v. Harold Clarke, et al.
Harold Clarke
Appellant
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4. Is there any other publicly held corporation or other publicly held entity that has a direct
financial interest in the outcome of the litigation (Local Rule 26.1(b))? YES NO
If yes, identify entity and nature of interest:
5. Is party a trade association? (amici curiae do not complete this question) YES NO
If yes, identify any publicly held member whose stock or equity value could be affectedsubstantially by the outcome of the proceeding or whose claims the 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 NO
If yes, identify any trustee and the members of any creditors committee:
Signature: ____________________________________ Date: ___________________
Counsel for: __________________________________
CERTIFICATE OF SERVICE
**************************
I certify that on _________________ the foregoing document was served on all parties or their
counsel of record through the CM/ECF system if they are registered users or, if they are not, by
serving a true and correct copy at the addresses listed below:
_______________________________ ________________________
(signature) (date)
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s/Kate E. Dwyre 12/30/2013
Harold Clarke
12/30/2013
Katherine M. Gigliotti, EsquireMichael E. Bern, EsquireDaniel I. Levy, EsquireLantham & Watkins, LLP
555 Eleventh Street, NW, Suite 1000Washington, DC 20004-1304E-mail: [email protected]
s/Kate E. Dwyre 12/30/2013
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10/28/2013 SCC - 1 -
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
DISCLOSURE OF CORPORATE AFFILIATIONS AND OTHER INTERESTS
Disclosures must be filed on behalf of all parties to a civil, agency, bankruptcy or mandamuscase, except that a disclosure statement is not required from the United States, 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 the action in the district court are considered parties tothe 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 in paper rather thanelectronic form. Counsel has a continuing duty to update this information.
No. __________ Caption: __________________________________________________
Pursuant to FRAP 26.1 and Local Rule 26.1,
______________________________________________________________________________(name of party/amicus)
______________________________________________________________________________
who is _______________________, makes the following disclosure:
(appellant/appellee/petitioner/respondent/amicus/intervenor)
1. Is party/amicus a publicly held corporation or other publicly held entity? YES NO
2. Does party/amicus have any parent corporations? YES 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 held corporation orother publicly held entity? YES NO
If yes, identify all such owners:
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13-8021 Alfredo Prieto v. Harold Clarke, et al.
A. David Robinson
Appellant
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4. Is there any other publicly held corporation or other publicly held entity that has a direct
financial interest in the outcome of the litigation (Local Rule 26.1(b))? YES NO
If yes, identify entity and nature of interest:
5. Is party a trade association? (amici curiae do not complete this question) YES NO
If yes, identify any publicly held member whose stock or equity value could be affectedsubstantially by the outcome of the proceeding or whose claims the 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 NO
If yes, identify any trustee and the members of any creditors committee:
Signature: ____________________________________ Date: ___________________
Counsel for: __________________________________
CERTIFICATE OF SERVICE
**************************
I certify that on _________________ the foregoing document was served on all parties or their
counsel of record through the CM/ECF system if they are registered users or, if they are not, by
serving a true and correct copy at the addresses listed below:
_______________________________ ________________________
(signature) (date)
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s/Kate E. Dwyre 12/30/2013
A. David Robinson
12/30/2013
Katherine M. Gigliotti, EsquireMichael E. Bern, EsquireDaniel I. Levy, EsquireLantham & Watkins, LLP
555 Eleventh Street, NW, Suite 1000Washington, DC 20004-1304E-mail: [email protected]
s/Kate E. Dwyre 12/30/2013
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10/28/2013 SCC - 1 -
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
DISCLOSURE OF CORPORATE AFFILIATIONS AND OTHER INTERESTS
Disclosures must be filed on behalf of all parties to a civil, agency, bankruptcy or mandamuscase, except that a disclosure statement is not required from the United States, 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 the action in the district court are considered parties tothe 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 in paper rather thanelectronic form. Counsel has a continuing duty to update this information.
No. __________ Caption: __________________________________________________
Pursuant to FRAP 26.1 and Local Rule 26.1,
______________________________________________________________________________(name of party/amicus)
______________________________________________________________________________
who is _______________________, makes the following disclosure:
(appellant/appellee/petitioner/respondent/amicus/intervenor)
1. Is party/amicus a publicly held corporation or other publicly held entity? YES NO
2. Does party/amicus have any parent corporations? YES 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 held corporation orother publicly held entity? YES NO
If yes, identify all such owners:
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13-8021 Alfredo Prieto v. Harold Clarke, et al.
E. Pearson
Appellant
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4. Is there any other publicly held corporation or other publicly held entity that has a direct
financial interest in the outcome of the litigation (Local Rule 26.1(b))? YES NO
If yes, identify entity and nature of interest:
5. Is party a trade association? (amici curiae do not complete this question) YES NO
If yes, identify any publicly held member whose stock or equity value could be affectedsubstantially by the outcome of the proceeding or whose claims the 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 NO
If yes, identify any trustee and the members of any creditors committee:
Signature: ____________________________________ Date: ___________________
Counsel for: __________________________________
CERTIFICATE OF SERVICE
**************************
I certify that on _________________ the foregoing document was served on all parties or their
counsel of record through the CM/ECF system if they are registered users or, if they are not, by
serving a true and correct copy at the addresses listed below:
_______________________________ ________________________
(signature) (date)
Appeal: 13-8021 Doc: 11 Filed: 12/30/2013 Pg: 2 of 2
s/Kate E. Dwyre 12/30/2013
E. Pearson
12/30/2013
Katherine M. Gigliotti, EsquireMichael E. Bern, EsquireDaniel I. Levy, EsquireLantham & Watkins, LLP
555 Eleventh Street, NW, Suite 1000Washington, DC 20004-1304E-mail: [email protected]
s/Kate E. Dwyre 12/30/2013
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iii
TABLE OF CONTENTS
Page
CORPORATE DISCLOSURE STATEMENTS ...................................................... iiTABLE OF CONTENTS ......................................................................................... iiiTABLE OF AUTHORITIES ................................................................................... viJURISDICTIONAL STATEMENT ..........................................................................1ISSUES PRESENTED FOR REVIEW .....................................................................2STATEMENT OF THE CASE ..................................................................................3STATEMENT OF FACTS ........................................................................................8
A. Prietos crimes, trials, and convictions. ................................................8B. Virginias other offenders currently on death row. .............................11C. The professional judgment of Virginias prison officials about the
importance of segregating death-row offenders. .................................14D. Virginias prison-housing policies. .....................................................16E. Prietos complaints about conditions on death row. ...........................20
SUMMARY OF ARGUMENT ...............................................................................27ARGUMENT ...........................................................................................................31I. The Supreme Court and Fourth Circuit have repeatedly emphasized
the substantial deference owed to prison officials judgmentsconcerning conditions of confinement. ......................................................... 31
II. Prieto has no State-law liberty interest in being considered forplacement in the general prison population that entitles him to any
protection under the Due Process Clause. ..................................................... 35
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A. State law, not federal law, determines if prisoners enjoy a libertyinterest in avoiding prison conditions that, as in this case, do not
otherwise violate the Constitution. ......................................................36
1.
WolffandMeachum. ................................................................. 36
2. GreenholtzthroughHewitt. ....................................................... 383. Sandin establishes a second barrier to State-law liberty
claims: the condition must impose atypical and
significant hardship compared to the relevant prisoner
baseline. ..................................................................................... 394. The Supreme Court has not yet instructed lower courts
how to determine the relevant baseline for deciding when
a prisoner is exposed to atypical hardship. ............................ 415. Lower courts have regularly applied Sandins twin
barriers to recognizing State-created liberty interests. ............. 43B. Each of Sandins barriers independently requires judgment for
Virginia in this case. ............................................................................451. Virginia law creates no reasonable expectation that
capital offenders will be housed anyplace other than
death row. .................................................................................. 462. Because death row is sui generis, the relevant baseline
for comparison is death-row housing, not general
prisoner housing. ....................................................................... 47C. Prieto ignored the requirement to ground the liberty interest in State
law. ......................................................................................................50D. Even if it were legally relevant to compare Virginias death row to
death row in other States, Virginias segregation of death-row inmates
is not unique. .......................................................................................52
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III. The District Court improperly second-guessed the professionaljudgment of Virginias prison officials that death-row offenders are
too dangerous to house in the general prison population. ............................. 54
IV.
The injunction is invalid because it violates Federal Rule 65 and thePrison Litigation Reform Act. ....................................................................... 56
V. The Court should also vacate the award of attorneys fees and costs. .......... 58CONCLUSION ........................................................................................................58STATEMENT REGARDING ORAL ARGUMENET ...........................................60CERTIFICATE OF COMPLIANCE .......................................................................60CERTIFICATE OF SERVICE ....................................................................................
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TABLE OF AUTHORITIES
Page
CASESApanovitch v. Wilkinson,
32 F. Appx 704 (6th Cir. 2002) ..........................................................................50
Austin v. Wilkinson,
No. 4:01-cv-71, 2008 U.S. Dist. LEXIS 24032 (N.D. Ohio Mar.
11, 2008) ..............................................................................................................49
Beard v. Banks,
548 U.S. 521 (2006) ...................................................................................... 34, 35
Bell v. Wolfish,
441 U.S. 520 (1979) .............................................................................................33
Beverati v. Smith,
120 F.3d 500 (4th Cir. 1997)..................................................................... 4, 28, 47
Braun v. Maynard,
652 F.3d 557 (4th Cir. 2011)......................................................................... 32, 56
Brown v. McGinnis,No. 05-cv-758S, 2012 U.S. Dist. LEXIS 10847 (W.D.N.Y. Jan.
20, 2012) ..............................................................................................................44
Burns v. Virginia,
261 Va. 307, 541 S.E.2d 872,
cert. denied, 534 U.S. 1043 (2001) ......................................................................12
Cagle v. Hutto,
177 F.3d 253 (4th Cir. 1999)......................................................................... 57, 58
Conway v. Wilkinson,
No. 2:05-cv-820, 2005 U.S. Dist. LEXIS 31294 (S.D. Ohio Dec.
6, 2005) ......................................................................................................... 49, 56
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Filarsky v. Delia,
132 S. Ct. 1657 (2012) .........................................................................................46
Florence v. Bd. of Chosen Freeholders,
132 S. Ct. 1510(2012) ...................................................................... 32, 33, 34, 35
Frazier v. Coughlin,
81 F.3d 313 (2d Cir. 1996) ...................................................................... 43, 44, 45
Gaston v. Taylor,
946 F.2d 340 (4th Cir. 1991)................................................................................33
Gray v. Virginia,
274 Va. 290, 645 S.E.2d 448 (2007),
cert. denied, 552 U.S. 1151 (2008) ......................................................................11
Green v. Venable,
No. 3:09-cv-154, 2010 U.S. Dist. LEXIS 85928 (E.D. Va. Aug.
10, 2010) ..............................................................................................................44
Greenholtz v. Nebraska Penal Inmates,
442 U.S. 1 (1979) .......................................................................................... 38, 39
Guilbert v. Sennet,
235 F. Appx, 823 (2d Cir. 2007) ........................................................................44
Hewitt v. Helms,
459 U.S. 460 (1983) ................................................................................ 39, 40, 43
Hill v. Lockheed Martin Logistics Mgmt., Inc.,
354 F.3d 277 (4th Cir. 2004)................................................................................31
Hudson v. Palmer,
468 U.S. 517 (1984) ...................................................................................... 32, 35
Juniper v. Virginia,
271 Va. 362, 626 S.E.2d 383,
cert. denied, 549 U.S. 960 (2006) ........................................................................12
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Lawlor v. Virginia,
285 Va. 187, 209, 738 S.E.2d 847,
cert. denied, 134 S. Ct. 427 (2013) ......................................................................12
Lee v. Gurney,
No. 3:08-cv-130493, 2010 U.S. Dist. LEXIS 130493 (E.D. Va.
Dec. 9, 2010) ........................................................................................................44
Lisle v. McDaniel,
No. 3:10-cv-00064, 2012 U.S. Dist. LEXIS 170471 (D. Nev. July
5, 2012), adopted by2012 U.S. Dist. LEXIS 170467 (D. Nev.
Nov. 30, 2012) ......................................................................................................49
Lolavar v. de Santibanes,
430 F.3d 221 (4th Cir. 2005)................................................................................45
Mathews v. Eldridge,
424 U.S. 319 (1976) .............................................................................................39
McKune v. Lile,
536 U.S. 24 (2002) ...............................................................................................34
Meachum v. Fano,
427 U.S. 215 (1976) .............................................................. 36, 37, 38, 46, 50, 51
Morva v. Virginia,
278 Va. 329, 683 S.E.2d 553 (2009),
cert. denied, 131 S. Ct. 97 (2010) ................................................................. 12, 13
Olim v. Wakinekona,
461 U.S. 238 (1983) .............................................................................................39
Overton v. Bazetta,
539 U.S. 126 (2003) ................................................................................ 32, 34, 35Parker v. Cook,
642 F.2d 865 (5th Cir. 1981)................................................................................50
Pearson v. Callahan,
555 U.S. 223 (2009) .............................................................................................45
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Pell v. Procunier,
417 U.S. 817 (1974) .............................................................................................35
Peterkin v. Jeffes,
855 F.2d 1021 (3rd Cir. 1988) .............................................................................50
Porter v. Virginia,
276 Va. 203, 661 S.E.2d 415 (2008),
cert. denied, 556 U.S. 1189 (2009) ......................................................................13
Prieto v. Clarke,
No. 1:12-cv-1199, 2013 U.S. Dist. LEXIS 161783 (E.D. Va. Nov.
12, 2013) ...................................................................................................... passim
Prieto v. Davis,No. 3:13-cv-849 (E.D. Va. 2014) ........................................................................11
Prieto v. Virginia,
133 S. Ct. 244 (2012) ...........................................................................................10
Prieto v. Virginia,
278 Va. 366, 682 S.E.2d 910 (2009) ..................................................... 8, 9, 10, 55
Prieto v. Virginia,
283 Va. 149, 721 S.E.2d 484,cert. denied, 133 S. Ct. 244 (2012) ............................................................... 10, 55
Prieto v. Warden of the Sussex I State Prison,
286 Va. 99, 748 S.E.2d 94 (2013) ........................................................................10
Puranda v. Hill,
No. 3:10-cv-733, 2012 U.S. Dist. LEXIS 84238 (E.D. Va. 2012) ......................44
Puranda v. Johnson,
No. 3:08-cv-00687, 2009 U.S. Dist. LEXIS 93226 (E.D. Va. Sept.30, 2009), appeal dismissed, 367 F. Appx 453 (4th Cir. 2010) ............ 44, 45, 51
Rossignol v. Voorhaar,
316 F.3d 516 (4th Cir. 2003)................................................................................31
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Sandin v. Conner,
515 U.S. 472 (1995) ..................................................................................... passim
Schaffer v. Weast,
554 F.3d 470 (4th Cir. 2009)................................................................................58
Smith v. Coughlin,
748 F.2d 783 (2nd Cir. 1984) ...............................................................................50
Teleguz v. Virginia,
273 Va. 458, 643 S.E.2d 708 (2007),
cert. denied, 552 U.S. 1191 (2008) ......................................................................13
Thornburg v. Abbott,
490 U.S. 401 (1989) .............................................................................................35
Turner v. Safley,
482 U.S. 78 (1987) .................................................................................. 32, 33, 34
VCA Cenvet, Inc. v. Chadwell Animal Hosp., LLC,
No. 13-1369, 2014 U.S. App. LEXIS 869 (4th Cir. Jan. 16, 2014).....................31
Vitek v. Jones,
445 U.S. 480 (1980) .............................................................................................38
Wilkinson v. Austin,
545 U.S. 209 (2005) .................................................... 6, 28, 42, 45, 47, 49, 51, 52
Williams v. Wetzel,
No. 12-944, 2013 U.S. Dist. LEXIS 184000 (W.D. Pa. Dec. 9, 2013),
adopted by2014 U.S. Dist. LEXIS 7428 (W.D. Pa. Jan. 22, 2014). ...................48
Wolff v. McDonnell,
418 U.S. 539 (1974) .............................................................. 36, 38, 41, 46, 50, 51
STATUTES18 U.S.C. 3626(a)(1)(A) ................................................................................ 30, 57
18 U.S.C. 3626(a)(1)(B) ................................................................................ 30, 57
18 U.S.C. 3626(b)(2)...................................................................................... 30, 57
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28 U.S.C. 1331 ........................................................................................................1
28 U.S.C. 1915A .....................................................................................................3
42 U.S.C. 1983 ....................................................................................... 1, 3, 46, 48
2013 Md. Acts ch. 156 .............................................................................................53
Va. Code Ann. 19.2-264.2 (2009) ........................................................................55
1965 W. Va. Acts ch. 40,
codifiedat W. Va. Code Ann. 61-11-2 (2013) ..................................................53
CONSTITUTIONAL PROVISIONSU.S. Const. amend VIII ............................................................................. 3, 4, 34, 35
U.S. Const. amend. XIV ....................................................... 3, 35, 36, 37, 39, 41, 52
RULESFed. R. App. P. 4(a)(5) ...........................................................................................1, 7
Fed. R. Civ. P. 65(d) ......................................................................................... 30, 56
REGULATIONSVa. Dept of Corrections, Operating Procedure 460.A .............................. 17, 46, 57
Va. Dept of Corrections, Operating Procedure 830.2 ......................... 17, 19, 46, 57
OTHER AUTHORITIESBryan A. Garner, Garners Dictionary of Legal Usage (3d ed. 2011) ......................8
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JURISDICTIONAL STATEMENT
The District Court had jurisdiction, under 28 U.S.C. 1331, over this
prisoner civil rights claim brought by a death-row inmate pursuant to 42 U.S.C.
1983. The District Court entered an order on November 12, 2013, enjoining
Defendants either to provide him with an individualized classification
determination for his prison housing, using procedures that are the same or
substantially similar to the procedures used for all non-capital offenders, or to
improve his conditions of confinement so they do not impose an atypical and
significant hardship. (JA 850-51.) Appellants timely noted their appeal from that
Order on December 9, 2013 (docketed December 12, 2013). (JA 857.) On
January 10, 2014, the District Court denied Defendants motion to stay the
injunction pending appeal. (JA 897.)
The District Court entered a separate order awarding attorneys fees and
costs to plaintiff on December 13, 2013. (JA 858.) On January 27, 2014,
Appellants filed a motion with the District Court, within the time allowed under
Fed. R. App. P. 4(a)(5), to extend the time to note a separate appeal from that
award. (JA 13.) On February 4, 2014, the District Court entered an order stating
that it did not believe that defendants need to file a second Notice of Appeal to
contest the award of attorneys fees and costs to plaintiff because that award is part
of the final judgment of the Court, but the District Court nevertheless granted
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their motion, finding good cause to extend the time to appeal it. (JA 899.)
Appellants timely noted the appeal on February 6, 2014. (JA 901.)
This Court consolidated the two appeals on February 20, 2014. (Doc. 20.)
The Court has appellate jurisdiction under 28 U.S.C. 1291.
ISSUES PRESENTED FOR REVIEW
Under Sandin v. Conner, courts evaluate due process challenges to prison
conditions by asking if the State imposes atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life, and by determining if
State law has created a liberty interest with regard to the entitlement claimed.
515 U.S. 472, 484 (1995). Neither the Supreme Court nor this Court has applied
Sandin in the context of death-row inmates.
Virginia houses its capital offenders in highly secure, segregated
confinement on death row. Non-death-row prisoners, by contrast, are assigned to
prisons with varying security levels based on a series of individualized factors.
The District Court ordered Virginias prison officials to apply the same or similar
system of individualized factors to Plaintiff, a death-row inmate, or to improve his
current conditions of confinement so they do not impose an atypical and
significant hardship.
The questions presented are whether the baseline for determining if death-
row confinement is atypical under Sandin is the death-row population or the
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general prison population, and whether Virginia has created a valid liberty
interest on the part of death-row inmates to be considered for housing in the
general prison population.
STATEMENT OF THE CASE
On October 24, 2012, Plaintiff Alfredo Prieto brought apro seprisoner civil
rights claim against Virginias prison officials under 42 U.S.C. 1983. (JA 2, 14.)
He claimed that the conditions of his solitary confinement on death row constituted
cruel and unusual punishment in violation of the Eighth Amendment, and that the
refusal of prison officials to allow him privileges enjoyed by inmates in the general
prison population, and to consider him for housing there, violated the Due Process
Clause of the Fourteenth Amendment. (JA 18-20.)
Screening his claim under 28 U.S.C. 1915A, the District Court, the Hon.
Leonie M. Brinkema presiding, dismissed Prietos Eighth Amendment claim but
concluded that Prieto had stated a claim that his due process rights have been
violated by his indefinite placement in a special housing unit. (JA 179.)
On November 27, 2012, Prieto appealed the District Courts dismissal of his
Eighth Amendment claim. (JA 186.)
On December 10, 2012,pro bonodefense counsel entered an appearance for
Prieto in the District Court. (JA 3.)
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On January 25, 2013, defendant prison officials, represented by the Office of
the Attorney General of Virginia, filed an answer and motion for summary
judgment. (JA 188, 193.)
On February 6, 2013, this Court dismissed Prietos appeal of his Eighth
Amendment claim for failure to prosecute it. (JA 202, 828.)
As for the due process claims remaining in the District Court, Prietos new
counsel argued that summary judgment was premature because discovery was
needed. The District Court agreed, denying Defendants motion without prejudice;
extensive discovery ensued. (JA 828.)
At the close of discovery, Defendants renewed their summary judgment
motion and Prieto cross-moved for summary judgment. (JA 9.) The District Court
heard oral argument on September 6, 2013. (JA 785.)
On November 12, 2013, the District Court issued a memorandum opinion
granting summary judgment to Prieto and denying it to Defendants. Prieto v.
Clarke, No. 1:12-cv-1199, 2013 U.S. Dist. LEXIS 161783 (E.D. Va. Nov. 12,
2013) (JA 822). The District Court concluded that, under this Courts decision in
Beverati v. Smith, 120 F.3d 500, 504 (4th Cir. 1997), the relevant baseline for
comparing prison conditions on death row were the conditions in the general
prison population at Sussex I State Prison. 2013 U.S. Dist. LEXIS 161783, at *14
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(JA 834). The opinion did not address whether Virginia law created a liberty
interest on the part of death-row offenders to avoid segregated confinement.
Comparing conditions to the general population, the District Court
concluded that the conditions on death row are uniquely severe, and that death
row inmates like plaintiff are denied all freedom of movement and most freedom to
interact with others. There can be no dispute that almost every aspect of a death
row inmates life is controlled and monitored. Id.at *17 (JA 836-37). The
court [found] it significant that plaintiff has already spent five years in this
placement, and there is no end in sight. Plaintiff has not even begun federal post-
conviction proceedings, which are likely to play out over the course of several
years and further delay the carrying out of his sentence. (JA 837.)
The District Court further found that the nature of plaintiffs confinement
furthers few, if any, legitimate penological goals, such as those that might justify
solitary confinement temporarily for valid punitive, protective, or investigative
purposes. Id.at *21 (JA 840). The court concluded that Prieto has been by all
accounts a model prisoner and had not engaged in any of the behaviors that
would normally support placement in segregated confinement. Id.
The District Court enjoined Virginia to:
provide plaintiff with an individualized classification
determination using procedures that are the same or
substantially similar to the procedures used for all non-
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capital offenders, and/or that defendants improve
plaintiffs conditions of confinement such that the
confinement does not impose an atypical and significant
hardship. (JA 850-51.)
The courts opinion described that injunction as limited and identified two
ways that Virginia officials could comply:
First, defendants could provide plaintiff with an
individualized classification determination using
procedures that are the same or substantially similar to
the procedures used for all non-capital offenders, as
plaintiff requests. Doing so would likely comport withthe minimal due process requirements described in
Wilkinson [v. Austin, 545 U.S. 209, 226-27 (2005)].
Second, defendants could vary the basic conditions of
confinement on death row, if only slightly, such that
confinement there would no longer impose an atypical
and significant hardship on plaintiff. Id.at *30-31 (JA
848).
As to its second suggestion, the court did not specify which of Prietos many
complaints about the conditions of his confinement would have to be addressed so
that his confinement was no longer atypical compared to conditions in the
general prison population at Sussex I State Prison.
On November 25, 2013, Prieto moved for attorneys fees of $151,734.39 and
costs of $13,661.60. (JA 853). Defendants did not dispute the amounts claimed in
the event the underlying judgment were affirmed on appeal. (JA 855.)
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On December 9, 2013, Defendants appealed the judgment (although the
appeal was not docketed until December 12, within the 30 days allowed). (JA
857.)
On December 13, 2013, the court awarded Prieto attorneys fees and costs in
the amount he requested. (JA 858.)
On December 20, 2013, Defendants moved to stay the injunction pending
appeal. (JA 12.) They explained at the hearing on January 10, 2014, that in order
to do a meaningful classification of Mr. Prieto, [Virginia officials] would have to
change the classification system as it is now because it does not currently
contemplate a death sentence as it does life sentences; [i]ts asking the
Department to radically change how theyre housing death-sentenced inmates.
(JA 893.) The court responded that the majority of the states within the Fourth
Circuit, in fact, do house their death row inmates differently than does Virginia
(JA 892), that conditions on Virginias death row are inhumane (JA 894), and
that Prieto was entitled to the otherwise rational classification system Virginia
uses for its non-death-row prisoners (JA 895). So the Court denied the motion to
stay the injunction pending appeal. (JA 897.)
On February 4, 2014, the Court granted Defendants motion under Fed. R.
App. P. 4(a)(5) to extend the time to note an appeal from the December 13, 2013
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Order awarding attorneys fees and costs (JA 899), and Defendants noted that
appeal on February 6, 2014 (JA 901). The appeals have been consolidated here.
STATEMENT OF FACTS
Since October 30, 2008, Prieto has been confined in a special housing unit at
Sussex I State Prison, awaiting the imposition of the death penalty for two
convictions of capital murder. (JA 195, 203, 435.) The unit is commonly
referred to as death row. (JA 435). The phrase death row is used throughout
the United States; it is an Americanism dating from the early 1940s . . . . Bryan
A. Garner, Garners Dictionary of Legal Usage 248 (3d ed. 2011).
A. Prietos crimes, trials, and convictions.Rachael A. Raver and Warren H. Fulton, III, both 22, were last seen alive
leaving a restaurant together, after midnight on December 4, 1988. Prieto v.
Virginia, 278 Va. 366, 377, 682 S.E.2d 910, 915 (2009) (Prieto I). Two days later,
Ravers partially nude body was found lying in a field . . . in Fairfax County.
Fultons fully clothed body was found about 100 feet away from Ravers body.
Ravers jeans, underpants, gloves, and shoes were found approximately halfway
between the two bodies. Id. Raver received a single gunshot wound to the back
and had scraping of the skin on her abdomen, legs, hands, and face, and a bruise
on her neck, caused by the pushing or pulling of her body . . . . Id. at 378, 682
S.E.2d at 915. Her body was found undressed from the waist down with her legs
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spread apart on the ground . . . . Id. Biological residues from her thighs and
vagina were collected and preserved. Id. Fulton was killed by a single gunshot,
also into his back. Id. Although investigators attempted in early 1989 to identify a
suspect, there was no match at that time to the DNA evidence found on Ravers
body. Id.at 379, 682 S.E.2d at 915-16.
In September 2005, almost 17 years after the murders, DNA testing
connected Prieto to the crimes. Id.at 379-80, 682 S.E.2d at 916. Prieto was then
being held on death row in California for the rape and murder of a 15-year-old girl
who, like Raver, was found in a remote, open field, partially unclothed, and lying
on her back with her legs spread apart, and who was also killed by a single
gunshot wound. Id.at 380, 682 S.E.2d at 916.
A Fairfax County grand jury indicted Prieto in 2007 for, among other
crimes, the premeditated murder of Fulton and the willful, deliberate, and
premeditated killing of . . . Raver in the commission of or subsequent to rape. Id.
at 375, 682 S.E.2d at 914. After extradition to Virginia and one mistrial, a second
jury found Prieto guilty of two counts of capital murder, two counts of use of a
firearm in the commission of murder, rape, and grand larceny. Id.at 377, 682
S.E.2d at 914. The jury recommended the death sentence for both capital
convictions, and the trial judge imposed it. Id. The Supreme Court of Virginia
affirmed the convictions but vacated the death sentences, remanding for a new
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penalty proceeding on the capital murder convictions. Id.at 418, 682 S.E.2d at
938.
On remand, a jury unanimously found both aggravating factors of future
dangerousness and vileness, either of which provides sufficient grounds for the
imposition of the death penalty . . . and again recommended two death sentences.
Prieto v. Virginia, 283 Va. 149, 157, 721 S.E.2d 484, 489 (2012) (Prieto II). The
evidence of Prietos prior crimes included felony convictions for:
a drive-by shooting of three people on or about August25, 1984 and an escape committed on or about August
16, 1985 [;] . . . a series of crimes committed in
California on or about September 2, 1990: the rape and
murder of a 15 year old girl, two attempted murders, two
additional rapes, three kidnappings, two robberies, two
attempted robberies, and possession of a firearm by a
felon. Prieto I, 278 Va. at 380, 682 S.E.2d at 916.
On January 13, 2012, the Supreme Court of Virginia affirmed the imposition
of the death sentence. Prieto II, 283 Va. at 157, 721 S.E.2d at 489. On October 1,
2012, the U.S. Supreme Court denied Prietos petition for certiorari. Prieto v.
Virginia, 133 S. Ct. 244 (2012) (Prieto III). On September 12, 2013, the Supreme
Court of Virginia denied his State habeaspetition. Prieto v. Warden of the Sussex
I State Prison, 286 Va. 99, 748 S.E.2d 94 (2013) (Prieto IV). The District Court
for the Eastern District of Virginia has ordered Prietos counsel to file his federal
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multiple times. Juniper v. Virginia, 271 Va. 362, 376-77, 626 S.E.2d 383, 393-94,
cert. denied, 549 U.S. 960 (2006). While the two-year-old was still in her mothers
arms, Juniper shot the toddler four times, including firing a bullet into the crown of
the childs head. Id.at 376-77, 626 S.E.2d at 394.
William Joseph Burns. Burns was convicted of raping, anally sodomizing,
and murdering his 73-year-old mother-in-law in 1998. Burns v. Virginia, 261 Va.
307, 313, 541 S.E.2d 872, 877, cert. denied, 534 U.S. 1043 (2001). He inflicted
multiple injuries to her head and chest and caused 24 fractures to her ribs, one of
which may have punctured her heart. Id.at 315, 541 S.E.2d at 878-79. His other
convictions included felony theft, breaking and entering, malicious destruction of
property, resisting arrest, battery, assault, disorderly conduct, and a third-degree
sex offense. Id.at 318, 541 S.E.2d at 880.
Marc Eric Lawlor. Lawlor was convicted of the 2008 beating death of
Genevieve Orange, whom Lawlor also sexually assaulted. Lawlor v. Virginia, 285
Va. 187, 209, 738 S.E.2d 847, 859, cert. denied, 134 S. Ct. 427 (2013). Lawlor
bludgeoned her 47 times with various objects, including a metal pot and frying
pan. Id.
William Charles Morva. Morva was convicted of murdering two men in
2006 while in custody, awaiting trial on burglary and firearm charges. Morva v.
Virginia, 278 Va. 329, 683 S.E.2d 553 (2009), cert. denied, 131 S. Ct. 97 (2010).
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While claiming to need medical attention, Morva escaped from the local hospital,
attacked and knocked unconscious a sheriffs deputy, stole his gun, and used it to
kill an unarmed hospital security guard by shooting him in the face from two feet
away, despite that the guard tried to surrender. Id.at 335-36, 683 S.E.2d at 557.
Before being apprehended the next day, Morva also killed a sheriffs deputy by
shooting him in the back of the head. Id. at 336-37, 683 S.E.2d at 557.
Thomas Alexander Porter. Porter was convicted for the 2005 murder of
Norfolk police officer Stanley Reaves after Reaves responded to reports that Porter
was brandishing a firearm and threatening a group of women in a nearby
apartment. Porter v. Virginia, 276 Va. 203, 216-17, 661 S.E.2d 415, 419-20
(2008), cert. denied, 556 U.S. 1189 (2009). When Officer Reaves arrived to
question him, Porter shot Reaves three times in the head and neck. Id.at 218, 661
S.E.2d at 420-21.
Ivan Teleguz. Teleguz was convicted of murder for hire in connection with
the 2001 slaying of Stephanie Sipe, his ex-girlfriend and mother of his infant son.
Teleguz v. Virginia, 273 Va. 458, 467, 643 S.E.2d 708, 714 (2007), cert. denied,
552 U.S. 1191 (2008). One of the two men hired by Teleguz, following his
instruction that he wanted Sipes throat cut, stabbed Sipe in her trachea, larynx
and esophagus, severing a major artery. Id.at 468, 643 S.E.2d at 714-15.
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C. The professional judgment of Virginias prison officials about theimportance of segregating death-row offenders.
Prietos counsel deposed Virginias senior prison officials, including the
agency head and the warden at Sussex I State Prison. Defendant Harold C. Clarke
is the Director of the Virginia Department of Corrections, where he has served
since 2010. (JA 580, 583). He is the official responsible for promulgating the
Departments policies. (JA 593.) Director Clarke has worked as a corrections
professional for forty years (since 1974), including prior service as the Director of
the Nebraska Department of Corrections, the Secretary of Corrections for
Washington State, and the Commissioner of Corrections for the Commonwealth of
Massachusetts. (JA 583-84, 588, 591.)
The warden at Sussex I State Prison is Keith W. Davis. (JA 435.)1 Davis
has worked for the Virginia Department of Corrections for 30 years. (JA 290.)
James Parks is the Director of Offender Management Services for the Department
of Corrections, where he has worked for 24 years. (JA 694, 698.) Defendant A.
David Robinson is Chief of Corrections Operations. (JA 340.)
The Defendants testified as to why, in their professional judgment, it was
important for death-row inmates to be confined in segregated conditions in a
single, maximum security facility, and not to be considered for housing among the
1Defendant Eddie L. Pearson was the warden of Sussex I State Prison when Prieto
filed his lawsuit. (JA 195, 340.)
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general prison population. (See, e.g., Clarke Dep. at JA 634-36, 639-48, 650-53,
656-60, 674, 678-79, 686-87; Robinson Dep. at JA 262, 573 (the propensity for
something to go wrong [is] a lot more severe and if it goes wrong, it could be very
serious); Davis Dep. at JA 286; Parks Dep. at 724, 753.)
As Director Clarke put it:
Theyre segregated because we see those individuals as
potentially the most desperate of all the offenders.
Again, they have been sentenced to die. They have
nothing to lose. They dont even look forward to a life in
prison in which they can improve themselves, change
their ways, [and] help other individuals for the rest of
their life until they die of natural causes. They have been
sentenced to die and as soon as the appeal process is
completed, a date is set, that sentence will carry out. (JA
639 (emphasis added).)
Clarke explained that, although death-row inmates may act out less often than
other prisoners, particularly when pursuing their legal efforts to avoid execution
(JA 653), they sometimes lash out when legal setbacks occur (JA 655). He also
testified how prisoners who may outwardly appear to have repented may simply
be playing games, cautioning that when we misread whats going on it can be
catastrophic. (JA 648.)
Director Clarke explained his concern that permitting death-row offenders to
congregate with other prisoners would pose an unacceptable safety risk. He
described an incident in the 1980s in which death-row inmates who hadbeen
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permitted to congregate at the maximum security prison in Mecklenberg staged a
mass escape, an incident that could have been catastrophic had they not been
apprehended. (JA 643.)
He further testified that, while no prisoner had yet escaped from Sussex I
State Prison, there was a much higher risk of escape from among the general
population housed there than from its death-row unit:
[O]ffenders in general population are moving about, they
can see the fences. They can plan. They can study staff
patterns of behavior and so forth and eventually find a
way out.
I have been in this business long enough where there
have been escapes from high security facilities where
offenders did just exactly what I said. They have all the
time in the world to sit in the yard, to become familiar
with staff, to become familiar with patterns of behaviors,
the way things are done, and they can execute. Andwhen they do it youll be left wondering where are they
as they found that one seam theyre able to get through.
And that is not something that we would want to ever
occur with an offender whos on death row. (JA 644-45.)
D. Virginias prison-housing policies.The Virginia Department of Corrections operates more than three dozen
correctional units and other major facilities throughout the Commonwealth,
including Sussex I State Prison with its segregated unit for death-row prisoners.2
2Seehttp://vadoc.virginia.gov/facilities/(listing facilities).
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The Department is responsible for approximately 39,000 prisoners. (JA 617-18.)
It has been quite successful in meeting its goals. (JA 713.) The Department, in
fact, has experienced relatively little unrest at its facilities and fewer prisoner
assaults compared to prison systems in other States. (Id.; JA 621 (very
successful).)
As noted above, death-row prisoners are automatically sent to death row at
Sussex I State Prison. Operating Procedure 830.2(D)(7) provides that [a]ny
offender sentenced to Death will be assigned directly to Death Row . . . . (JA
196, 199, 221.) The Procedure further states that they will not be considered for
reclassification to a different facility. (JA 199, 221, 227.19.) Operating Procedure
460.A(I), Security of Offenders Under the Sentence of Death, likewise establishes
a policy to prohibit death-row offenders from being housed with general
population prisoners. (JA 941.)
By contrast, all non-death-row prisoners are evaluated under a classification
system to determine where to house them. The scoring system decides their
placement at facilities ranging from minimum security, Level 1 facilities, to
maximum-security Level 5 facilities, to even more restrictive segregation for
disruptive and assaultive offenders at a Level S facility like Red Onion State
Prison. (JA 219, 622-23.)
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The general prison-population housing at Sussex I State Prison is a Level 5
facility; approximately 1,000 prisoners are housed there. (JA 295). It has
approximately 126 prisoners in administrative segregation. (Id.) (The death row
unit is isolated from the rest of the prison and has 44 segregated cells. (JA 370).)
To decide where to place non-death-row prisoners, the Security Level
point-scoring system uses the following eight factors:
history of institutional violence; severity of current offense; prior offense history severity; escape history; length of time remaining to serve; current age; prior felony convictions; and other stability factors. (JA 244.)
Then, based on various mitigating and aggravating factors, prison officials may use
their discretion to increase or decrease the prisoners score. (JA 220.) Additional
factors determine whether non-death-row prisoners qualify for administrative
segregation (solitary confinement), such as whether they have committed
aggravated assaults on staff, present serious escape risks, or have seized or held
hostages. (JA 223-24.) General population prisoners may also be held in
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segregative confinement for disciplinary reasons, but disciplinary segregation does
not exceed 60 days. (JA 623.)
The scoring thresholds set forth in Operating Procedure 830.2 (at JA 219)
are as follows:
Thus, prisoners with a score of 32 points or higher would be sent to a Level 5
facility like Sussex I State Prison. Non-death-row prisoners are then evaluated
annually to review whether their placement is appropriate. (JA 221-23; 624-25.)3
Because the computer system that tracks each prisoners place of
confinement requires inputting a Security Level number for all inmates, prisoners
sentenced to death are assigned the number 99 to reflect their categorical
assignment to death row. As the official responsible for operating the computer
system explained: Thats the only way the system will take it . . . . [The number]
99 has no other significance . . . . (JA 749.)
3Misconduct by a prisoner may trigger a classification review before the annual
review. (JA 222-23.)
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E. Prietos complaints about conditions on death row.If Prieto were housed in the general population of a Level 5 facility like
Sussex I State Prison, his prison mates would include persons convicted of
offenses ranging from driving under the influence and violating parole, to habitual
offenders driving on suspended licenses, to more serious offenders convicted of
murder, robbery and rape. (JA 296.) Prietos counsel argued in the District Court,
however, that given Prietos good conduct since his arrival on death row, he would
score 25 points (before any discretionary adjustments) if death-row inmates like
him were evaluated as if they were serving a life-without-parole sentence for
murder. (JA 777-81.) A score of 25 would make him eligible to be housed in a
Level 3 facility. (JA 219.) His counsel allowed that discretionary review could
properly place Prieto instead in a Level 4 or Level 5 facility (JA 789, 791-92) but
said Prieto would object to it as disingenuous if prison officials used their
discretion to conclude that he should remain in segregated conditions based solely
on the capital offenses for which he has been sentenced to death (JA 813-14).
Prietos other complaints about his death-row housing included:
that he is kept in his cell for 23 hours a day and must take all three mealsthere. (JA 204.) But the same is true of prisoners held in administrative
segregation (including those housed at Level S facilities). (JA 334-35, 684);
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that he has minimal human contact. Other than interactions with the unitsguards, infrequent visits by my attorneys, and when I occasionally cut
another inmates hair, I have almost no other human contact, he said. (JA
205.) But death-row inmates are also visited by a mental health practitioner
at least once a week and receive twice daily visits from medical personnel.
(JA 437.) They are also afforded the opportunity of out-of-cell recreation
for one hour a day, five times per week, unless security or safety concerns
dictate otherwise. (JA 204, 437.) During out-of-cell recreation, they may
see and converse with other death row offenders in the recreation area.
(JA 437.)
that he is not permitted to have contact visits with family members. (JA206.) But the same is true of prisoners in administrative segregation and
Level S segregation. (JA 392.) Offenders on death row and in
administrative segregation are permitted, however, to have non-contact and
video visitation during the same visiting hours enjoyed by general popula-
tion prisoners. (JA 328, 392, 438.) And at the Wardens discretion, death-
row inmates may be permitted contact visits with immediate family
members every six months. (JA 392, 349-50, 681-82.) The record reflects
that none of the 11 contact-visit requests by death-row inmates between
September 2008 and December 2012 was granted (JA 350), but that statistic
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sheds no light on the circumstances why. And although Prieto complained
that every request I have ever submitted to have a contact visit with
immediate family has been denied by the Warden, he admitted in the same
affidavit that [a]ll of my immediate family lives in California and I rarely
have visitors. (JA 206.)
that he has a poor view from his window. Indeed, Prietos prison-conditionsexpert explained that poor-window views are common in solitary
confinement at prisons in other States, looking out on virtually nothing that
is visually appealing; some cells, like those at Pelican Bay in California,
have no window at all. (JA 408.) But the evidence below actually showed
that, while an inmate standing on the floor of a death-row cell at Sussex I
State Prison would see only sky, by elevating oneself (such as by standing
on the bed next to the window, see JA 938, 939), a person can see fields,
trees, things of nature. (JA 358.) The windows there are also the same size
as in general population cells, except that the windows in both death-row
and administrative-segregation cells have wire mesh across them to prevent
prisoners from burning holes in the Plexiglass through which to pass
contraband. (JA 278, 322.) Wire mesh is being installed on the windows in
the general population cells too, but not all have been outfitted yet; prison
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officials started first with the cells on death row and in administrative
segregation units. (JA 322.)
that the cells are small and Prieto must rotate cells every month. (JA 205,
411.) But the cells on death row are comparable in size to cells in the
general population units. (JA 437.) The cells measure 71 square feet. (JA
343, 823; see Photographs at JA 938, 940.)4 Offenders in the general
population, by contrast, must share a cell with another inmate. (JA 467.) So
death-row offenders actually have more personal space than general
population prisoners. And cell rotation is necessary to guard against escape
efforts, concealed weapons, and contraband. (JA 285.)
that death-row prisoners cannot attend religious services, unlike prisoners inthe general population. (JA 206, 309.) But death-row offenders are
permitted visits directly in their cell from the Institutional Chaplain and
approved religious volunteers, privileges not afforded to inmates in
disciplinary segregation. (JA 437.) Prieto, who is Catholic, admitted that he
4The 71-square-foot figure comes from Director Clarkes sworn Interrogatory
Answers (JA 343) and was the figure found by Judge Brinkema in herMemorandum Opinion (JA 823). Earlier estimates by Defendants used the figure
31.16 square feet. (JA 190, 196.) But Prietos expert pointed out that that estimate
was too low. (JA 410 n.7 (offering his impression . . . that the actual square
footage is closer to 50-60 square feet).) He noted that death-row cells nationwide
range from 55 to 90 square feet. (JA 406.)
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did once successfully request a visit from a Catholic priest, although the
process was difficult. (JA 206.)
that death-row inmates have little to do to occupy their time. But they are
allowed to have a television and compact disc player in their cells, privileges
not afforded to offenders in administrative, Level S, or disciplinary
segregation. (JA 336, 355, 437, 684.) Death-row inmates may also
purchase commissary items, including food, whereas those in disciplinary
segregation may purchase only personal hygiene items and writing
materials. (JA 437, 688.) Death-row inmates also have the same telephone
privileges as prisoners in the general population8:30 a.m. to 9:30 p.m., 7
days per week. (JA 437.) Except, as Prieto explained, [i]f I need to make a
telephone call, a telephone is brought to my cell. (JA 205.)
that death-row inmates, like those in administrative segregation, areineligible to attend classes. (JA 325, 334.) But prison officials explained
that their limited resources do not allow for that. (JA 604-05, 641, 649-51,
656-58.) Similar resource constraints require denying such opportunities to
offenders serving life terms in the general prison population. (JA 605,
616.)5 With regard to providing education and job training, the Department
places its priority on offenders who are closer in time to being released, in
5Death-row offenders are the most expensive-per-inmate to house. (JA 266.)
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order to facilitate their re-entry into civil society and reduce the risk of their
recidivism. (E.g., JA 602 (You can equate effective re-entry programming
with improved public safety . . . . Because when you do a good job with
effective reintegrating, they have options.).)
that he is not permitted to visit the law library; [s]ometimes [his] requestsfor copies of legal decisions are delayed or ignored, and he cannot receive
legal texts, treatises or properly conduct legal research. (JA 205-06.) But
[w]ith regard to legal services, death row offenders have more access than
even offenders in the general population because of their ongoing appeals.
Death row offenders may request legal materials at any time, which are
delivered to their cells and [they] may request the phone to call their attorney
and set up a visit directly; offenders in disciplinary segregation must make a
request through their counselor for a legal call or visit. (JA 438; JA 463.)
that his cell is not totally dark at night; he may dim but not completely turnoff the nightlight in his cell, and he is not permitted to block out the light.
(JA 204.) But it is important, for safety and security reasons, for guards to
be able to see into an inmates cell at ANY time. (JA 200, 11.)
that his hands and feet are shackled whenever he leaves his cell. (JA 204.)But the regulations require this for the safety of the guards and other
prisoners. (JA 167, 200.)
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that he is permitted to shower three times a week and [t]here is notemperature control. (JA 204.)
Prietos expert also opined that while Mr. Prieto was confined from 1992-
2006 on Californias death row at San Quentin, the conditions he experienced were
in some ways substantially less harsh. (JA 412.) In particular, he said, Prieto
could recreate 12 hours a week in a large yard at San Quentin, together with other
prisoners; use a punching bag; play cards, basketball, dominos, and ping pong with
other prisoners; and attend group religious activities. (Id.) Death-row inmates at
San Quentin also enjoyed liberal contact visits, and their cells had windows
allowing a pleasant view of the ocean, bridges, and boats passing by. (Id.)
But Director Clarke was not persuaded that Virginia should change its
approach. In his professional judgment, the risks were simply too great:
[W]e dont want to put ourselves in a position wherein
were going to treat this population as the general
population because of all of the things that could go
wrong. Theyre not similarly situated as offenders in the
general population . . . . [T]hey have been sentenced to
die and we expect that is going to go on anywhere from
seven, and as you said, to ten years. In the process -- in
the meantime theyre appealing the sentences and they're
being treated as humanly -- theyre given access to the
courts, doing all those things that are necessary and
mandated constitutionally. And to go beyond that I think
increases the level of risk that we will face in the
department and to which we will expose the people of the
Commonwealth . . . . (JA 678-79.)
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SUMMARY OF ARGUMENT
Federal courts reviewing prisoner complaints about the conditions of their
confinement are required to give substantial deference to the judgment of prison
officials. The Supreme Court and Fourth Circuit have repeatedly discussed the
inordinately difficult task of operating a prison and the need to defer to the expert
judgment of corrections officials in order to ensure the safety of prisoners, prison
staff, and the public at large. Deference to their professional judgment is required
even when prisoners claim that their conditions of confinement violate
fundamental constitutional rights, such as rights protected under the First, Fourth
and Eighth Amendments. Judicial deference is afforded not simply because prison
administrators have a better grasp of the conditions and dangers in the prisons they
operate, but because the task of prison administration is committed to the
responsibility of the executive and legislative branches. And where, as here, the
case involves a State penal system, federalism principles provide an additional
reason for deference.
This case involves no claim that conditions on Virginias death row
independently violate the Constitution. The District Court rejected Prietos Eighth
Amendment claim, and this Court dismissed his appeal because he failed to
prosecute it. Instead, the question here is whether Virginia lawgives rise to a
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State-created liberty interest on the part of capital offenders to be considered for
housing in the general prison population.
In addition to requiring the prisoner to identify a State-law liberty interest to
support his Due Process claim, however, the Supreme Court in Sandin v. Conner
imposed an additional barrier: the prisoner must show that his confinement
imposes atypical and significant hardship on the inmate in relation to the ordinary
incidents of prison life. 515 U.S. 472, 484 (1995). Sandin created thatbarrier
after the Court became concerned that its case law had created a disincentive for
prison officials to memorialize their procedures and an incentive for prisoners to
scour through prison regulations to find State-law grounds for demanding due
process. Sandinwas meant to restrict condition-of-confinement claims, not to
make them easier to bring.
Sandin, and the Courts later decision in Wilkinsonv. Austin, 545 U.S. 209
(2005), did not instruct lower courts how to decide the baseline for determining
whether the prison conditions in question are atypical. And neither Sandinnor
Wilkinsoninvolved a claim by a death-row inmate. Nor has this Court decided the
relevant baseline for death-row offenders. Like Sandinand Wilkinson,Beverati v.
Smith, 120 F.3d 500 (4th Cir. 1997), involved general population prisoners who
were placed into segregative confinement. It did not evaluate condition-of-
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confinement claims by death-row inmates, and nothing inBeverati suggests that
they should be compared to general population prisoners.
Death-row confinement is sui generis. Indeed, every court to consider the
question (with the exception, now, of the district court below) has held that the
baseline under Sandin for evaluating condition-of-confinement claims by death-
row inmates is the condition of confinement of other offenders that the State has
sentenced to death.
In any event, Prieto cannot satisfy the threshold requirement to identify a
liberty interest created under Virginia law that would entitle him to be considered
for housing in the general prison population. The Operating Procedures of the
Virginia Department of Corrections make clear that all capital offenders will be
housed on death row at Sussex I State Prison and will not be considered for
reclassification.
The District Court also erred by looking to death-row conditions in other
States. What other States may do is not probative of whether Virginia has created
a State-law entitlement on the part of death-row inmates to be considered for
housing in the general prison population. And the survey data Prieto introduced
into the record actually confirm that Virginia is not unique in its housing of death-
row offenders.
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The District Court also erred in concluding that there is no difference
between death-row offenders and offenders sentenced to life in prison without
parole. Death-row offenders cannot be sentenced to death unless a jury or judge
has found that they pose a unique danger to society. Moreover, the District Court
improperly second-guessed the judgment of Virginias top corrections officials,
who gave extensive testimony below that it is important for security and the safety
of the public to house death-row offenders in segregative confinement, pending the
imposition of their sentence. Ignoring that testimony was error in light of the clear
directives of the Supreme Court and Fourth Circuit to defer to the professional
judgment of State prison officials. Virginias officials acted within their
reasonable professional judgment and expertise in determining that death-row
offenders have nothing to lose and present unique escape risks and dangers to other
prisoners and to the public.
The District Courts injunction is invalid on other grounds as well. It failed
to meet the requirements of Fed. R. Civ. P. 65(d) because it does not describe in
detail the acts required of Virginias prison officials. It also violated the Prison
Litigation Reform Act by overriding State law without including the required
findings that Federal law requires State law to be overridden, that such relief is
necessary to correct the violation of a Federal right, and that no other relief would
suffice.
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In this case, however, no injunction should have been entered at all because
Prieto failed to satisfy either of Sandins predicates for establishing a State-law
liberty interest. Accordingly, the complaint should be dismissed and the injunction
dissolved, and the award of costs and attorneys fees to Prieto should be vacated.
ARGUMENT
This Court reviews de novoa district courts decision to grant summary
judgment. Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 283 (4th
Cir. 2004) (en banc). Where, as here, the Court is faced with cross-motions for
summary judgment, it should review each motion separately on its own merits
to determine whether either of the parties deserves judgment as a matter of law.
VCA Cenvet, Inc. v. Chadwell Animal Hosp., LLC, No. 13-1369, 2014 U.S. App.
LEXIS 869, at *5-6 (4th Cir. Jan. 16, 2014) (quotingRossignol v. Voorhaar, 316
F.3d 516, 523 (4th Cir. 2003)). In considering each individual motion, [the Court
should] resolve all factual disputes and any competing, rational inferences in the
light most favorable to the party opposing that motion. Id.at *6 (citation and
quotation omitted).
I. The Supreme Court and Fourth Circuit have repeatedly emphasized thesubstantial deference owed to prison officials judgments concerningconditions of confinement.
The difficulties of operating a detention center must not be underestimated
by the courts. Florence v. Bd. of Chosen Freeholders,132 S. Ct. 1510, 1515
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(2012). It is an inordinately difficult undertaking that requires expertise,
planning, and the commitment of resources, all of which are peculiarly within the
province of the legislative and executive branches of government. Turner v.
Safley, 482 U.S. 78, 85 (1987). Maintaining safety and order at these institutions
requires the expertise of correctional officials, who must have substantial
discretion to devise reasonable solutions to the problems they face. Florence, 132
S. Ct. at 1515. Prison officials must, among other things: take reasonable
measures to guarantee the safety of the inmates themselves; be ever alert to
attempts to introduce drugs and other contraband; prevent, so far as possible, the
flow of illicit weapons into the prison; be vigilant to detect escape plots . . . before
the schemes materialize; and maintain as sanitary an environment for the inmates
as feasible, given the difficulties of the circumstances. Hudson v. Palmer, 468
U.S. 517, 526-27 (1984).
Recognizing prison as a special case, the Supreme Court has repeatedly
called for substantial deference to the professional judgment of prison
administrators, who bear a significant responsibility for defining the legitimate
goals of a corrections system and for determining the most appropriate means to
accomplish them. Overton v. Bazetta, 539 U.S. 126, 132 (2003) (collecting
cases). InBraun v. Maynard,652 F.3d 557 (4th Cir. 2011), this Court too
cautioned against judicial micromanagement of prison officials:
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Federal judicial micromanagement of state prison
administration risks unforeseen and counterproductive
consequences, and courts therefore afford prison
administrators latitude in dealing with this volatile
environment and the risks it poses to the health andsafety both of prison staff and of the inmates
themselves . . . .
Id.at 563 (citations omitted); see also Gaston v. Taylor,946 F.2d 340, 343 (4th
Cir. 1991) (en banc) (broad discretion in the management of the prison).
[J]udicial deference is accorded not merely because the [prison]
administrator ordinarily will, as a matter of fact in a particular case, have a better
grasp of his domain than the reviewing judge, but also because the operation of our
correctional facilities is peculiarly the province of the Legislative and Executive
Branches of our Government, not the Judicial. Bell v. Wolfish, 441 U.S. 520, 548
(1979). Because the task of prison administration has been committed to the
responsibility of those branches, . . . separation of powers concerns counsel a
policy of judicial restraint. Turner, 482 U.S. at 85. Where a state penal system
is involved, federal courts have . . . additional reason to accord deference to the
appropriate prison authorities. Id.
Deference is owed to the reasonable judgment of prison officials even when
a prisoner claims that the conditions of his confinement violate his constitutional
rights. For example, the Supreme Court in Florenceheld that the Fourth
Amendment does not require reasonable suspicion as a condition of conducting
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routine strip searches of pretrial detainees. 132 S. Ct. at 1513-14. The Court
repeated its longstanding rule that a regulation impinging on an inmates
constitutional rights must be upheld if it is reasonably related to legitimate
penological interests. Id.at 1515 (quoting Turner, 482 U.S. at 89). The Court
emphasized that, [i]n addressing this type of constitutional claim courts must
defer to the judgment of correctional officials unless the record contains
substantial evidence showing their policies are an unnecessary or unjustified
response to problems of jail security. Id.at 1513-14 (emphasis added).
The Court in Overton similarly rejected Eighth Amendment and due process
challenges to prison policies prohibiting contact visits for certain categories of
offender. 539 U.S. at 131-37. The Court said [t]he very object of imprisonment
is confinement. Many of the liberties and privileges enjoyed by other citizens must
be surrendered by the prisoner. Id.at 131. And the Court has also ruled that the
First Amendment does not preclude a policy by which prison officials offer or
withhold newspapers and magazines from violent offenders as an incentive to
improve their conduct. Beard v. Banks, 548 U.S. 521, 525 (2006) (opinion by
Breyer, J., joined by Roberts, C.J., and Kennedy and Souter, JJ.); id.at 540
(Thomas, J., concurring, joined by Scalia, J.). Other examples abound.6
6E.g., McKune v. Lile, 536 U.S. 24, 39 (2002) (plurality opinion) (rejecting Fifth
Amendment challenge to incentive system for rape offenders to admit their past
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II. Prieto has no State-law liberty interest in being considered forplacement in the general prison population that entitles him to any
protection under the Due Process Clause.
Unlike cases such as Florence, Overton, andBeard, this appeal does not
involve any claim that State-prison officials have violated rights that are created by
the Constitution itself. The district court dismissed Prietos Eighth Amendment
challenge to his solitary confinement and to the policy denying him more liberal
contact-visitation rights. (JA 182-83.) This Court dismissed Prietos appeal from
that ruling because he failed to prosecute it. (JA 202.)
Thus, the onlyclaim that remains is Prietos argument that he has been
denied due process because prison officials, inter alia, failed to consider him for
housing among the general prison population. But as shown below, that claim
depends on proving both that (1) the conditions of Prietos confinement are
atypical compared to other death-row inmates, and (2) Virginialaw creates an
entitlement on the part of death-row prisoners to be considered for housing among
the general prison population. Prieto cannot make either showing.
crimes); Thornburg v. Abbott, 490 U.S. 401, 407-08 (1989) (rejecting First
Amendment challenge to policy for screening and rejecting incoming publicationsfound to be detrimental to prison security);Hudson, 468 U.S. at 526-27 (holding
that prison inmates are not entitled to Fourth Amendment protection against
unreasonable searches and seizures in their individual cells); Pell v. Procunier, 417
U.S. 817, 822 (1974) (upholding prison regulation denying face-to-face contact by
prisoners with reporters).
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A. State law, not federal law, determines if prisoners enjoy a libertyinterest in avoiding prison conditions that, as in this case, do not
otherwise violate the Constitution.
When the Constitution itself does not entitle prisoners to avoid particular
conditions of confinement, it is possible for State law to create a valid liberty
interest that cannot be taken away from them except in accordance with reasonable
procedures that meet the standards of the Due Process Clause of the Fourteenth
Amendment. The seminal cases on this point were Wolff v. McDonnell, 418 U.S.
539 (1974), andMeachum v. Fano, 427 U.S. 215 (1976).
1. WolffandMeachum.In Wolff, the Court held that, while the Constitution itself did not guarantee
Nebraska prisoners good time credits for good behavior, Nebraska itself had
created a liberty interest in good time credits that triggered protection under the
Due Process Clause:
Nebraska may have the authority to create, or not, a right
to a shortened prison sentence through the accumulation
of credits for good behavior . . . . But the State having
created the right to good timeand itself recognizing that
its deprivation is a sanction authorized for major
misconduct, the prisoners interest has real substance and
is sufficiently embraced within Fourteenth Amendmentliberty to entitle him to those minimum procedures
appropriate under the circumstances and required by the
Due Process Clause to insure that the state-created right
is not arbitrarily abrogated. Id. at 557 (emphasis altered).
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The Courts treatment of such State-created libertyinterests thus parallels its
treatment of State-createdpropertyinterests that also become entitled to due
process protection. Id. A persons liberty is equally protected, even when the
liberty itself is a statutory creation of the State. Id.at 558.
InMeachum, the Court held Massachusetts law had not created any liberty
interest on the part of prisoners to be given any process before they were
transferred from a low-security to a maximum-security prison. The Court