Prieto - Prieto Brief

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 of
Virginia, No. 1:12-cv-1199 (Hon. Leonie M. Brinkema)

OPENING BRIEF FOR PLAINTIFF-APPELLEE

Michael E. Bern
Abid R. Qureshi
Katherine M. Gigliotti
Daniel I. Levy
LATHAM & WATKINS LLP
555 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
i
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
mandamus case, 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 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 in
paper rather than electronic form. Counsel has a continuing duty to update this
information.
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 held
corporation or other publicly held entity? YES x NO
If yes, identify all such owners:

ii
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 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 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 x NO
If 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 registered
users 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)
iii
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 ............................................ 6 A.
Conditions of Confinement for Offenders Not Sentenced to B.
Death...................................................................................................... 9
Conditions of Confinement for Offenders Sentenced to Death .......... 10 C.
Alfredo Prietos Classification to Death Row ..................................... 13 D.
Mr. Prietos Claim and The District Courts Decision ....................... 14 E.
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 PROCESS
CLAUSE. ....................................................................................................... 21
Mr. Prietos Conditions of Confinement Mirror Those that the A.
Supreme Court Has Found to Implicate a Liberty Interest Under
Any Plausible Baseline. ................................................................... 22
Mr. Prietos Conditions of Confinement Impose An Atypical B.
and Significant Hardship Relative to Ordinary Prison
Conditions in Virginia. ........................................................................ 27
VDOCs Belated Claim that the Existence of a Liberty Interest C.
Turns On State Regulations Is Waived and Incompatible With
Precedent. ............................................................................................ 35
iv
Page
1. VDOC Has Waived Any Argument That Mr. Prieto Must
Point to An Entitlement in State Regulations In Order to
Establish a Liberty Interest. ...................................................... 36
2. The Existence of a State-Created Liberty Interest Turns
on the Nature of the Deprivation Caused By State Action,
Not the Language of State Regulations. ................................... 38
3. A Liberty Interest in Avoiding Permanent Solitary
Confinement 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 Avoiding A.
Permanent Assignment to Solitary Confinement. ............................... 51
VDOCs Policy of Automatically Assigning Mr. Prieto to B.
Those Conditions Carries a Substantial Risk of Error. ....................... 51
The States Interest in Withholding Process Is Minimal. ................... 56 C.
IV. THE DISTRICT COURTS ORDER DOES NOT VIOLATE
FEDERAL RULE OF CIVIL PROCEDURE 65 OR THE PRISON
LITIGATION REFORM ACT. ..................................................................... 58
The District Courts Order Does Not Violate Federal Rule of A.
Civil Procedure 65(d). ......................................................................... 58
The District Courts Order Does Not Violate The PLRA. .................. 59 B.
CONCLUSION ........................................................................................................ 61

v
TABLE OF AUTHORITIES
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. PJ M-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

vi
Page(s)
Gilmore v. California,
220 F.3d 987 (9th Cir. 2000) .............................................................................. 60

Grice v. Baltimore County,
354 F. Appx 742 (4th Cir. 2009) ....................................................................... 50

Griffin v. Vaughn,
112 F.3d 703 (3d Cir. 1997) ............................................................................... 35

Hewitt v. Helms,
459 U.S. 460 (1983) ............................................................................................ 50

Kentucky Department of Corrections v. Thompson,
490 U.S. 454 (1989) ................................................................................ 45, 49, 50

Kitchen v. Upshaw,
286 F.3d 179 (4th Cir. 2002) .............................................................................. 42

Knowlin v. Heise,
420 F. Appx 593 (7th Cir. 2011) ....................................................................... 43

Lisle v. McDaniel,
No. 3:10-cv-00064-LRH-VPC, 2012 U.S. Dist. LEXIS 170471
(D. Nev. J uly 5, 2012) ......................................................................................... 35

Malik v. Sligh,
No. 5:11-1064- RBH-KDW, 2012 U.S. Dist. LEXIS 129211
(D.S.C. Aug. 3, 2012) ......................................................................................... 27

Marion v. Columbia Correctional Institution,
559 F.3d 693 (7th Cir. 2009) ........................................................................ 30, 44

Mathews v. Eldridge,
424 U.S. 319 (1976) ................................................................................ 50, 56, 58

McNeill v. Currie,
84 F. Appx 276 (4th Cir. 2003) ......................................................................... 42

vii
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

viii
Page(s)
United States v. Herrera,
23 F.3d 74 (4th Cir. 1994) .................................................................................. 36

Vitek v. Jones,
445 U.S. 480 (1980) ...................................................................................... 44, 45

Volvo Construction Equipment North America, Inc. v. CLM Equipment Co.,
386 F.3d 581 (4th Cir. 2004) .............................................................................. 38

Welch v. Bartlett,
196 F.3d 389 (2d Cir. 1999) ............................................................................... 34

Westefer v. Snyder,
422 F.3d 570 (7th Cir. 2005) .............................................................................. 30

Wilkinson v. Austin,
545 U.S. 209 (2005) .....................................................................................passim

Williams v. Fountain,
77 F.3d 372 (11th Cir. 1996) .............................................................................. 30

Williams v. Wetzel,
No. 12-944, 2013 U.S. Dist. LEXIS 184000 (W.D. Pa. Dec. 9, 2013) .............. 34

Wolff v. McDonnell,
418 U.S. 539 (1974) ................................................................................ 40, 41, 47

STATUTES AND RULES

18 U.S.C. 3626(a)(1)(A) ....................................................................................... 59

18 U.S.C. 3626(a)(1)(B) ....................................................................................... 59

18 U.S.C. 3626(b)(3)............................................................................................. 60

28 U.S.C. 1915A ................................................................................................... 14

42 U.S.C. 1983 ...................................................................................................... 14
ix
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 4
Washington (Mar. 8, 2013), available at
http://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 on
Prison Inmates: A Brief History and Review of the Literature,
34 Crime & J ust. 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 disabilities
could aid two on death row, Washington Post (May 28, 2014), available
at http://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

1
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,
2
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 years despite 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 ordinary incidents 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 within seven days to 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.
3
On the basis of that powerful record, the district court properly found that
Mr. Prieto had established a liberty interest in avoiding placement in permanent
solitary confinement without due process. And because VDOC failed to provide
any process whatsoever to Mr. Prieto before assigning him to uniquely severe
conditions of confinement, the district court concluded that VDOC violated the
requirements of the Fourteenth Amendment.
On appeal, the Department challenges only whether Mr. Prieto has
established a liberty interest in avoiding permanent solitary confinement. But
because VDOC implicitly recognizes that Mr. Prietos conditions impose an
atypical and significant hardship in relation to the ordinary incidents of prison
lifethe test that both parties agreed below governs this casethe Department
largely changes course before this Court. In particular, it argues that Mr. Prieto
can only establish a liberty interest by pointing to a particular entitlement giving
rise to it in state laws or regulations. In so doing, the Department seeks to
resuscitate a long-since overruled line of Supreme Court cases, under which the
existence of a state-created liberty interest turned on the language of state
regulations, rather than the nature of the deprivation experienced by the prisoner.
That gambit fails for three reasons.
First, the Department invited the supposed error that it asks this Court to
correct. Having asked the district court to employ the appropriate analysis below,
4
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
5
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
6
de minimus. Under the Due Process Clause, such basic procedural protections are
necessary to ensure that inmates like Mr. Prieto are not permanently assigned to
uniquely harsh and atypical conditions of confinement unnecessarily and
erroneously. The district courts judgment should be affirmed.
STATEMENT OF FACTS
VDOCs System for Managing Offenders A.
With the sole exception of inmates sentenced to death (death row
offenders or DROs), VDOC classifies all other inmates into conditions of
confinement on the basis of an individualized assessment designed to identify their
appropriate security level. Classification is intended to be a multidimensional
process that looks at a variety of factors in order to take a full picture of the
individual. J A733-34. In VDOCs view, knowing more about an offender and
looking at a variety of factors is going to ensure better classification. J A734. As
such, VDOC considers it insufficient and inadequate to classify individuals solely
on the basis of their initial crime or sentence. See J A625-26, 782.
Classification of offenders into appropriate security levels enhances
public, staff, and offender safety by ensuring that each offender receives the
appropriate level of control and management while reducing the operating cost of
the DOC by ensuring that offenders are not subjected to excessive control and
7
management. J A218. VDOCs overall goal is to move an offender to the lowest
security level in which he can be safely and effectively maintained. J A617, 765.
Following conviction, offenders are initially classified into conditions of
confinement varying from minimum security (level one) to maximum security
(level five). J A825.
1
VDOC determines an offenders initial classification by
interviewing each offender about his specific needs, J A720, 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, J A244, 912. An inmates initial
assignment is intended to be conservative, because VDOC knows less about how
that inmate will adjust to prison. J A718.
Offenders are then reclassified at least annually. J A776, 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. J A622; Opening Brief of Defendants-Appellants (AOB) 17.
8
incarcerated, and affords the offenders crime and sentence less weight. J A256,
227.16-227.17, 912-14. Most offenders classifications change over time,
sometimes drastically. J A718-19, 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. J A718-19, 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., J A907-17. 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., J A953-70.
Unlike all other offenders managed by VDOC, DROs are never individually
assessed or interviewed for purposes of classification. J A221, 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. J A747, 750.
Their behaviorgood or badis never taken into account. J A751-52. They are

2
DROs are automatically given a score of 99 on their Security Level
Scoresheet. J A747-49. VDOC arbitrarily picked the number 99 for record-
keeping purposes. J A749. The number has no other significance.
9
never reclassified and the appropriateness of their status is never reviewed. J A221,
775-77, 781-82.
Conditions of Confinement for Offenders Not Sentenced to Death B.
Even at a maximum-security prison like SISP, the conditions experienced by
general population offenders (GPOs) differ dramatically from those experienced
by DROs. J A835-36. 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. J A297-99, 363, 918-19 (photos). GPOs
may also play basketball with other inmates in an indoor gym once a week.
J A299-300. 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. J A301-04, 365.
Other opportunities for human contact and stimulation abound, as GPOs
enjoy the near-constant company of others. J A836. GPOs eat up to two daily
meals in a communal dining hall, where they may converse with other inmates.
J A271-72, 935 (photo). GPOs have access to educational, behavioral, or
vocational classes with their peers, and may attend congregational religious
10
services in numerous denominations. J A306-11, 936-37 (photos). Employment
outside their living pod is available, including work in the kitchen, laundry, yard,
gymnasium, and library. J A304-05, 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. J A311-13, 385.
Conditions of Confinement for Offenders Sentenced to Death C.
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. J A370. 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. J A823, 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. J A823, 835. Other lights within the housing unit always
remain on and perpetually shine into DROs cells. J A823. DROs have a small
11
horizontal window covered by mesh wiring that is a window in name only.
J A835, J A938-39 (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. J A196, 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. J A668, 950 (photo). DROs cannot do any exercise during recreation that
they cannot do in their cell. J A668. Before and after receiving recreation, DROs
are strip-searched, during which they must squat, lift their genitals, and cough.
J A368-69, 930, 943.
Opportunities for human contact are minimal. Each DRO is placed at least
two cells apart from other DROs. J A321. That distance, along with each cells
heavy metal door, substantially inhibits communication between inmates. J A824,
940 (photo). Visitation is highly restricted. DROs are not permitted even non-
contact visits with friends or non-immediate family members. J A392, 947. Visits
with immediate family may only take place through a pane of glass and telephone.
J A824, 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. J A576, 947. None have been approved in the six years that Mr. Prieto
12
has been incarcerated on death row. J A378, AOB21. The present warden
explained that he would approve a visit only if an inmate was on his deathbed.
J A283.
DROs have no access to the recreation yard or the gymnasium. J A275, 946.
They are not permitted in-pod recreation. J A324. 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. J A325-27, 373. They eat every meal alone in their
cell, and cannot work outside the pod. J A325-26, 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. J A355-56, 835.
DROs conditions of confinement are more similar to what exist in other
segregated populations, such as disciplinary or administrative segregation.
J A669-70. Such assignments are generally temporary or short-term assignments
imposed as a result of offender misconduct. J A436. Before placement in
disciplinary or administrative segregation, an inmate must receive a formal due
process hearing. J A238-40, 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. J A239. 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,
13
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. J A232.
Alfredo Prietos Classification to Death Row D.
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. J A822. Since being incarcerated at SISP, Mr.
Prieto, who is now nearly 50 years old, has been by all accounts a model
prisoner. J A840. He has maintained a clean disciplinary record for six years and
is described by VDOCs prison officials variously as polite, keeps his cell neat,
J A227.19-227.20, giving correctional officers no issues whatsoever, J A375, and
as not a disciplinary problem, J A338.
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. J A781; see J A777-81.
3

3
VDOC suggests that Mr. Prietos evaluation was inaccurate because it omitted
Mr. Prietos prior conviction for escape. AOB55 n.14. But when classifying
inmates, VDOC considers relevant only an inmates attempted escape history
within the last five years. J A244. In its expertise, it considers Mr. Prietos
14
Mr. Prietos Claim and The District Courts Decision E.
On October 17, 2012, Mr. Prieto filed a civil rights action pro se in the
Eastern District of Virginia pursuant to 42 U.S.C. 1983, alleging, inter alia, that
his confinement to death row without process violated the Fourteenth Amendment.
J A14, 18-19. After a review by the court pursuant to 28 U.S.C. 1915A, it
concluded that Mr. Prietos allegations of being confined to a special housing unit
for several years without the right to due process protections, constituted a claim
upon which relief can be granted. J A179, 184. After obtaining pro bono counsel,
Mr. Prieto conducted discovery and the parties eventually filed cross-motions for
summary judgment. On November 12, 2013, J udge Brinkema granted Mr. Prietos
Motion for Summary J udgment. J A822.
The court first held that Mr. Prietos permanent assignment to a form of
solitary confinement implicated a liberty interest. J A823, 842. The court
concluded that Mr. Prietos conditions of confinement were eerily reminiscent of
those found to implicate a liberty interest at the maximum-security prison in
Wilkinson. J A835. Likewise, when compared to the conditions faced by GPOs at
SISP, the relevant baseline under this Courts precedents, the court determined that
Mr. Prietos conditions on death row were uniquely severe, undeniably
extreme, and atypical. J A836, 835, 842.

conviction for walking away from a juvenile work detail when he was 19thirty
years agonot relevant to his security needs today.
15
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.
J A845-46. 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. J A846.
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. J A850-51, 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. J A848.
16
SUMMARY OF ARGUMENT
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
17
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
18
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.
19
ARGUMENT
I. VDOC MISCONSTRUES MR. PRIETOS CLAIM.
Much of VDOCs argument is dedicated to two propositions that have little
relevance to the legal question that they have raised on appeal. First, VDOC
repeatedly argues that the question presented is whether Mr. Prieto has a State-
law liberty interest in being considered for placement in the general population.
AOB35 (emphasis added) (heading); see also AOB2-3 (listing as one of two issues
presented for review 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). The Departments insistence on making this argument is puzzling
because Mr. Prieto made clear below that he is not seeking entry into the general
prison population. See, e.g., Pl.s Opp. to Defs. Mot. Summ. J . 16 (ECF No. 83)
(Defendants can address [Mr. Prietos liberty] interest by affording [him] due
process or by altering his conditions of confinement. But neither approach requires
Defendants to place Mr. Prieto into the general population.); see id. at 1 (Mr.
Prieto has not sought relief of obtaining entry into the general population.).
To be clear, Mr. Prieto is claiming only that he is entitled to due process
before VDOC assigns him to conditions that impose an atypical and significant
20
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.
21
II. MR. PRIETOS CONDITIONS OF CONFINEMENT IMPLICATE A
LIBERTY 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.
22
Mr. Prietos Conditions of Confinement Mirror Those that the A.
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. J A835. 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
23
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. J A204. The lights never go out in his cell,
although they are scaled back during the overnight hours. J A835. 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. J A204, 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. J A321, 410, 824. He eats all of his
meals alone in his cell. J A85, 204, 824. Opportunities for visitation are rare. No
24
contact visit has been approved in years. J A206, 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 J A392, 350. In practice, visits are
extremely infrequent; most DROs have not received a single visitor over the past
year. J A366-67, 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, J oint Appendix 29, Wilkinson v, Austin,
545 U.S. 209 (2005) (No. 04-495), 2005 WL 273552 (U.S.) (Wilkinson J A). 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. See Brief for Petitioners 44, Wilkinson v. Austin, No. 04-495 (U.S. J an. 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 all persons 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. J A835. The Supreme Court unanimously found those
25
conditions to be harsh, especially severe, and synonymous with extreme
isolation. Wilkinson, 545 U.S. at 214, 224.
Indeed, Mr. Prietos conditions are even more restrictive 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; J A343. 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 J A392 (noting cell-side
programming with GED, religious, and mental health leaders); id. (noting four
inmates who were in counseling session together) with J A325-27, 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. See J A668. 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.
26
The only real break from the monotony of a DROs existence owes to a
television and compact disc player in his cell and limited interactions with prison
officials. J A835. Inmates at OSP had similar opportunities. See Wilkinson J A31-
37 (noting inmates could purchase a state-issued TV and borrow library books, and
most could purchase walkmans); id. at 392 (noting cell-side visits from mental
health officials). That did not dissuade the Wilkinson Court from concluding that
OSP inmates are deprived of almost any environmental or sensory stimuli and of
almost all human contact. 545 U.S. at 214. Similarly, the district court concluded
that Mr. Prietos rudimentary privileges do not mitigate the overwhelming fact of
isolationplaintiff is left alone in a small cell for nearly every hour of every day.
J A837.
Although the Wilkinson Court recognized that courts of appeals had reached
different conclusions about the baseline from which to measure what is atypical
and significant in any particular prison system, it unanimously concluded that
assignment to OSP imposes an atypical and significant hardship under any
plausible baseline. 545 U.S. at 223 (emphasis added).
5
VDOC does not even

5
VDOC implies that the Courts analysis in Wilkinson should be given less
weight because Ohio had conceded that prisoners assigned to [OSP] had a State-
law liberty interest in avoiding that assignment, and allegedly tried to withdraw
the concession, but conceded the point again at oral argument. AOB42 & n.8.
That is inaccurate, however. Although Ohio conceded in its briefs that inmates
possessed a liberty interest in avoiding OSP, it disavowed that position at oral
argument. See Wilkinson, 545 U.S. at 221 (Ohio initially adhered to its early
27
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 and B.
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) (citation
omitted)). Both Ohio and the United States ultimately took the position that
inmates lacked a liberty interest in avoiding placement at OSP. Id. The Supreme
Court therefore concluded that it [was] appropriate to address th[e] threshold
question of whether a liberty interest was implicated. Id.
28
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. J A835. After
extensively reviewing the undisputed record, including deposition testimony,
VDOC policies, photographic evidence, and an expert report, J udge Brinkema
concluded that the conditions experienced by general population inmates at SISP
differ in almost every meaningful respect from those experienced by Mr. Prieto.
J A836. 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. J A836. 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,
29
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 cells
6
or a similarly-sized recreation
cage where they can do no exercise that cannot already be done in their cells.
J A823; 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, who
share similarly-sized cells with other inmates. AOB23. But DROs are perpetually
confined in a 71-square foot cell or similarly-sized recreation cage. GPOs spend
much of their days outside their cell, recreating, socializing, taking classes, and
visiting, and may socialize with a cellmate when they return. As SISPs warden
acknowledged, therefore, the impact of confinement in those cells is different. See
J A280-81.
30
than those imposed upon the general population. J A287, 637. The impact of those
conditions is exacerbated because they are permanent. Some inmates have been on
Virginias death row for over 15 years. Mr. Prieto has been in solitary
confinement for almost 6 years and there is no end in sight. J A837. [O]ther
courts of appeals have held that periods of confinement that approach or exceed
one year may trigger a cognizable liberty interest without any [specific] reference
to conditions. Marion v. Columbia Corr. Inst., 559 F.3d 693, 699 (7th Cir. 2009);
see also Trujillo v. Williams, 465 F.3d 1210, 1225 (10th Cir. 2006) (finding that
when a prisoner is subjected to a lengthy period of segregation, the duration of
that confinement may itself be atypical and significant). This case presents a far
easier question: whether conditions arguably more severe and substantially longer
in duration than those the Supreme Court found to implicate a liberty interest under
any plausible baseline impose an atypical and significant hardship compared to
normal prison life in Virginia. Beverati, 120 F.3d at 503.
7
The district court
properly found that it does. See J A835; see also Williams v. Fountain, 77 F.3d

7
Mr. Prietos ineligibility for parole does not diminish the conclusion that a
liberty interest is implicated here. In Wilkinson itself, the Supreme Court found a
liberty interest implicated even though 90% of OSP inmates were already
ineligible for parole before their assignment to OSP. See supra at 24. And many
other courts have found Wilkinsons test may be met even when an inmates
eligibility for parole is unaffected. See, e.g., Westefer v. Snyder, 422 F.3d 570,
589-90 (7th Cir. 2005); Burrell v. Sowers, No. PJ M-09-1038, 2012 U.S. Dist.
LEXIS 23758, at *21-22 (D. Md. Feb. 24, 2012), affd, 474 F. Appx 995 (4th Cir.
2012).
31
372, 374 n.3 (11th Cir. 1996) (assuming that full year of solitary confinement
imposes a liberty deprivation requiring due process).
VDOC primarily responds by arguing that the appropriate baseline to which
Mr. Prietos conditions should be compared is not the general prison population,
but the conditions experienced by other death-row offenders. Under the
Departments view, whether an inmate possesses a constitutional liberty interest in
avoiding particular conditions of confinement would apparently vary on a cell-by-
cell basis, with the baseline a function of the typical conditions in which an inmate
with a particular sentence (and perhaps a particular criminal record, age, and more)
is placed. Not only is that inconsistent with this Courts precedent, which
establishes the baseline as the conditions within the general population, it is
incompatible with the plain language of Wilkinson itselfwhich makes clear that
the baseline is determined by what is atypical and significant in any particular
prison system. Wilkinson, 545 U.S. at 223 (emphasis added); see also id.
(evaluating whether OSP imposes atypical and significant hardship on the inmate
in relation to the ordinary incidents of prison life (emphasis added)). Here,
Virginia imposes permanent solitary confinement on only 8 out of 39,000
prisoners. It could not be more clear that such conditions impose a significant
hardship that is atypical for Virginias prison system.
32
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 J A567 (defining
Mr. Prietos conditions as special housing (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
general prison population. AOB47.
33
murder, robbery, or rape, but might give rise to a liberty interest for those
convicted of driving under the influence or a suspended license, for which
assignment to a maximum-security prison is surely atypical and severe compared
to the placement of those similarly-situated. AOB20. That would render the
meaning of the Due Process Clause different for every inmate in Virginia, and
counterintuitively create greater constitutional protections for those sentenced to
less-restrictive conditions for shorter terms than those placed permanently into the
most atypical and severe conditions in a states prison system.
It is no answer to say that death row is sui generis. AOB47 (heading).
When a state elects to place inmates sentenced to death in conditions of permanent
solitary confinement, that is a product of choice, not inevitability. Indeed, Virginia
is an outlier among other jurisdictions within this Circuit, all of whom confine
death-row offenders in highly restrictive, but substantially less-isolating conditions
than does Virginia. Maryland has integrated DROs into the general population;
North Carolina permits DROs to socialize with other inmates sentenced to death, to
participate in congregate programming, and enjoy recreation together; South
Carolina permits offenders greater freedom of movement within the death row unit
without restraints and allows them to participate in religious programming; and
West Virginia does not have the death penalty. J A859-90.
34
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 Wilkinson a 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 substantive due process claims unrelated
to Mr. Prietos claim. Some cases even contradict VDOCs argument. In Williams
35
v. Wetzel, for instance, the court compared a DROs conditions with those for
[i]nmates in administrative custody, the general baseline used in the Third
Circuit. No. 12-944, 2013 U.S. Dist. LEXIS 184000, at *17 (W.D. Pa. Dec. 9,
2013); see Griffin v. Vaughn, 112 F.3d 703, 707 (3d Cir. 1997).
9
Regardless, no
case undermines the inescapable conclusion that Mr. Prietos uniquely severe
conditions of confinement impose an atypical and significant hardship in relation
to the ordinary incidents of prison life in Virginia. J A836.
VDOCs Belated Claim that the Existence of a Liberty Interest C.
Turns On State Regulations Is Waived and Incompatible With
Precedent.
For the first time on appeal, VDOC argues that the Due Process Clause
imposes a second barrier to the establishment of a liberty interest: whether Mr.
Prieto can point to an entitlement in a State statute or regulation that gives rise to
his liberty interest. AOB50-52. In VDOCs view, failure to ground a liberty
interest in language in a state statute or regulation independently requires
judgment for Virginia. AOB45 (heading). Not only has Virginia waived that

9
The other unpublished district court cases on which VDOC relies are largely
inapposite or unpersuasive. Both Austin v. Wilkinson, No. 4:01-cv-00071, 2008
U.S. Dist. LEXIS 24032, at *18-19 (N.D. Ohio Mar. 12, 2008), and Conway v.
Wilkinson, No. 2:05-cv-820, 2005 U.S. Dist. LEXIS 31294, at *1-2 (S.D. Ohio
Dec. 6, 2005), involved DROs objecting to transfers between death row facilities.
Lisle v. McDaniel, No. 3:10-cv-00064-LRH-VPC, 2012 U.S. Dist. LEXIS 170471,
at *9-11 (D. Nev. J uly 5, 2012), involved a cursory comparison between the
plaintiff and other DROs without any explanation as to why.
36
argument, it is inconsistent with the precedent of the Supreme Court and this
Court.
1. VDOC Has Waived Any Argument That Mr. Prieto Must
Point to An Entitlement in State Regulations In Order to
Establish a Liberty Interest.
This Court has made clear that a court can not be asked by counsel to take
a step in a case and later be convicted of error, because it has complied with such
request. United States v. Herrera, 23 F.3d 74, 75 (4th Cir. 1994) (quoting
Shields v. United States, 273 U.S. 583, 586 (1927)). That, however, is exactly
what VDOC asks this Court to do here.
Before the district court, VDOC repeatedly invited the courtcorrectlyto
examine solely whether Mr. Prietos conditions imposed an atypical and significant
hardship in relation to the ordinary incidents of prison life. For instance, the
Department opposed Mr. Prietos motion for summary judgment by arguing that
the degree of [Mr. Prietos] restrictions is only one of three factors that should be
analyzed by this Court in determining whether a liberty interest exists in avoiding
confinement on death row. Defs. Response to Pl.s Mot. Summ. J . 1 (ECF No.
81) (emphasis added). It proceeded to assert that in addition to the degree of
restrictions, this Court must also consider how long the confinement lasts and
whether the confinement affects the duration of Plaintiff's sentence. Id. at 2; see
id. (discussing Wilkinson and Sandin).
37
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
38
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 on
the 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
39
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 Sandin Court 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
40
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 (J an. 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
41
ordinary incidents of prison life . (citation omitted)). And that is how the
Department understood itat least until this appeal. See supra at 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.
42
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 imposed an 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
43
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 Sandin to 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.
44
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 Solitary
Confinement 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
45
consequences that are qualitatively different from the punishment
characteristically suffered by a person convicted of crime may invoke the
protections of the Due Process Clause even in the absence of a state-created right,
Kentucky Dept of Corr. v. Thompson, 490 U.S. 454, 460 (1989) (quoting Vitek,
445 U.S. at 493). Because Mr. Prietos permanent placement in solitary
confinement is dramatically different from the punishment characteristically
suffered by a person convicted of crime in Virginia, the Constitution itself affords
him a liberty interest.
Almost 125 years ago, the Supreme Court acknowledged that solitary
confinement imposes unique and severe consequences sharply different from those
that ordinarily follow from incarceration. Describing early American experiments
with solitary confinement, the Court explained that [a] considerable number of the
prisoners fell, after even a short confinement, into a semi-fatuous condition, from
which it was next to impossible to arouse them, and others became violently
insane; others, still, committed suicide; while those who stood the ordeal better
were not generally reformed. In re Medley, 134 U.S. 160, 168 (1890); see also id.
at 169-70 (noting that even occasional contact with prison officials, doctors,
religious advisers, and family did not alter the essential character of solitary
confinement). The Court likewise recognized that solitary confinement had long
been understood to impose a substantial stigma beyond the conditions of ones
46
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 in Meachum 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 isolation
that affects an inmate psychologically as well as
physically. Solitary confinement thus produces a loss
of 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 argued
that it is so great a change in the quality of life, beyond
whatever conditions were authorized by the original
judgment of conviction, that it produces a loss of
liberty even if there is no rule or settled course of
practice 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. J an. 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
47
(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. J A239. By
contrast, Mr. Prieto has been placed in solitary confinement for six years without
having committed a single disciplinary infraction. Unlike the conditions at issue in
Wilkinson or 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
48
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. J A406, 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 & J ust. 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 than
60 days failed to find evidence of negative psychological effects. Brief of
Professors and Practitioners of Psychology and Psychiatry 4, Wilkinson, No. 04-
49
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. J A282.
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 times that time period.
50
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 TO
INDEFINITE 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. J A844. The issue is not presented in
VDOCs Issues Presented for Review, see AOB2-3, 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) (citing Edwards v. City of Goldsboro, 178
F.3d 231, 241 n.6 (4th Cir. 1999)). Even if VDOC has not waived this argument,
51
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 Avoiding A.
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 Those B.
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.
52
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. J A196.
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
J A733 (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 .); J A734 ([K]nowing more and
looking at a variety of factors is going to ensure better classification.); J A782
([Y]ou do not want to look at just one element. I think looking at a variety of
elements for classification is most appropriate.); J A625-26 (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 others
convicted of multiple counts of capital murder and sentenced to life without parole
are assigned to less-restrictive conditions of confinement, J A907-17.
53
any placement other than permanent solitary confinement, looking solely at his
death sentence would not be an appropriate way of classifying him. J A782.
VDOC concedes, however, that DROs are assigned to conditions of confinement
solely on that basis. See J A752-53.
The risk of erroneous placement is exacerbated by VDOCs refusal to
reassess or reclassify DROs. Other offenders managed by VDOCincluding
those convicted of capital murdercommonly demonstrate over time that they can
be managed in less-restrictive conditions of confinement. See J A907-17
(describing transfer of individual with multiple capital murder convictions to a
level four facility); J A625 ([O]ffenders will generally move down in security
level over time.); J A718 (very typical for offenders to be reassigned to lower
security levels); J A718-19 (If [an offender] remains infraction free for a year
[after initial classification], I guarantee you when they have their reclassification
done theyre going to score at a lower level). Reclassification allows VDOC to
adjust an inmates classification on the basis of greater evidence about their
behavior in and adjustment to prison, which speaks directly to the conditions in
which they can be securely managed. J A768-69. By withholding any opportunity
for reclassification to offenders sentenced to death, VDOC ignores evidence that it
considers important to managing every other offenders conditions of
54
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., J A460, 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
55
himself expressly agreed that there are individuals within death row who are less
of a security risk than particular individuals in the general population. J A657.
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., J A652-53, 656-57, 474; some DROs exhibit better behavior than
individuals in the general population, J A652-53, 656-57; not all DROs are the
same security risk, see J A288-89, 652-53, 655-56; some DROs could handle less-
restrictive conditions without creating a security risk, J A286, 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 as Director
Clarke himself acknowledged, that is not true for all DROs; rather, whether
DROsor GPOsfeel as though they have nothing to lose varies by the
individual. J A655-56 (emphasis added). Moreover, some DROs retain hope
that their appeals will prevail. J A655; see, e.g., Matt Zapotosky, In Va., Supreme
Court decision on intellectual disabilities could aid two on death row, Washington
Post (May 28, 2014), available at http://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 (noting that
Mr. Prieto could benefit from Supreme Courts recent ruling in Hall v. Florida).
56
consider it inappropriate to rely on an individuals crime or sentence alone to
assess their security risk. See J A625-26, 782.
13

The States Interest in Withholding Process Is Minimal. C.
The final Mathews factor directs a court to consider the Governments
interest in withholding process, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural requirement
would entail. Mathews, 424 U.S. at 335. Here, Appellants interest in
withholding process is de minimus. In 2012 alone, Appellants conducted 25,578
security level reclassification actions. J A430; see J A221-22. VDOC explains that
that process requires a total of one to three work hours per offender. J A430. Even
if VDOC extended a similar process to every offender on death row, it would
impose a total burden of only between 8 to 24 hours out of the 25,000 to 75,000
hours that VDOC already spends on classification. That added burden is
insubstantial. See J A804-05 (conceding that resources used to conduct
classification are not significant). If anything, ensuring that Mr. Prieto is assigned
to appropriate conditions of confinement would save the Department resources.

13
VDOC argues that the district court ignored an escape by several DROs thirty
years ago from a far less-restrictive facility. AOB55-56. But as J udge Brinkema
and counsel alluded to during oral argument, many DROs knowingly chose not to
attempt escape and even protected prison personnel from harm during the incident.
J A818-19. As that illustrates, every DRO is different, underscoring the importance
of individual assessment.
57
See J A218 (Classification of offenders into appropriate security levels
reduc[es] the operating cost of the DOC .).
Moreover, VDOC acknowledges that its classification process is quite
successful at achieving security throughout Virginias prisons. AOB17; see
J A621-22 (noting classification process is very successful at ensuring that
offenders are assigned to the right [security] level); see also J A657. Applying
that process to Mr. Prieto would further, rather than harm, VDOCs articulated
interests. See J A466 ([One of the goals of the classification system is] to have
them housed in the least restrictive place based upon their crime, time, behavior,
threat to escape .); J A709 ([An inmate should be] at an adequate facility for
what security they need.).
Under the factors set out in Mathews v. Eldridge, Mr. Prieto has a
meaningful interest in avoiding unnecessary placement in permanent solitary
confinement; and the provision of well-established, quite successful, informal
procedures that impose a de minimus burden on the state would substantially
reduce the risk of erroneous placement. That process is therefore warranted.
58
IV. THE DISTRICT COURTS ORDER DOES NOT VIOLATE
FEDERAL RULE OF CIVIL PROCEDURE 65 OR THE PRISON
LITIGATION REFORM ACT.
The District Courts Order Does Not Violate Federal Rule of Civil A.
Procedure 65(d).
Federal Rule of Civil Procedure 65(d)(1)(B) and (C) requires an order
granting injunctive relief to state its terms specifically and describe in
reasonable detail the act or acts restrained or required. The district courts
order complied with both requirements. It specified that VDOCs automatic and
permanent placement of Mr. Prieto in restrictive conditions of confinement without
due process violated the Fourteenth Amendment. J A850. And it provided that
VDOC could remedy that violation either by (1) providing 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 by (2)
varying his basic conditions of confinement so that they no longer impose an
atypical and significant hardship. Id.
VDOC cannot seriously complain that it does not understand how to apply a
classification procedure that it applies to over 25,000 other inmates each year.
With one exception, every criteria that the Department uses to score and classify
all other Virginia inmates, including criminal history, stability factors, and
behavior, among others is equally applicable to DROs. See J A777-80. The sole
modification necessary would impact VDOCs assessment of an inmates
59
remaining sentence. Because point values presently do not correspond to
sentences greater than multiple-life sentences, VDOC would have to identify a
point value corresponding to a death sentence. That small step hardly amounts to a
radical[] change. AOB7 (citation omitted).
VDOC also complains that it is uncertain how to comply with the second
alternative envisioned by the district courts ordermodifying Mr. Prietos
conditions of confinement so that they do not implicate a liberty interest. But there
is abundant caselaw in this circuit and elsewhere that provides guidance as to the
nature and duration of conditions that does not implicate a liberty interest. That the
district court afforded VDOC flexibility if it chooses to modify Mr. Prietos
conditions of confinement renders the injunction more appropriate, not less.
14

The District Courts Order Does Not Violate The PLRA. B.
18 U.S.C. 3626(a)(1)(A) requires that a court granting prospective relief
must find that relief to be narrowly drawn, extend[] no further than necessary to
correct the violation of the Federal right, and [be] the least intrusive means
necessary to correct the violation of the Federal right. Section 3626(a)(1)(B),
meanwhile, requires that a court enjoin state law only when it finds it necessary to
correct the violation of a federal right. The PLRA does not, however, require

14
No doubt if the district court had provided more specific direction, VDOC
would complain that it was engaging in impermissible judicial micromanagement
of state prison administration. AOB56 (citation omitted). VDOC cannot have it
both ways.
60
that the court, in entering an injunction, use the magic words of the statute in
order to comply. Smith v. Bounds, 5:72-CT-3052-F, PC-NC-0007-0001, at 3
(E.D.N.C. Mar. 25, 1997), available at
http://www.clearinghouse.net/chDocs/public/PC-NC-0007-0001.pdf; see also
Gilmore v. California, 220 F.3d 987, 1007 n.25 (9th Cir. 2000) (PLRA satisfied so
long as relief actually meets the 3626(b)(2) narrow tailoring standard). Here,
by issuing a limited ruling that goes no further than necessary to remedy the
constitutional violation and affords VDOC maximum flexibility, the courts order
necessarily complied with the PLRA. J A848.
The Court found that Mr. Prietos permanent assignment to solitary
confinement implicated a liberty interest under the Due Process Clause and that the
state failed to provide due process. The court afforded VDOC the opportunity to
remedy either its failure to provide process or the conditions giving rise to a liberty
interest or, as VDOC sees fit. This Court previously has found injunctions that
closely track the constitutional violation to satisfy 3626(a)(1)(A). See Morrison
v. Garraghty, 239 F.3d 648, 661 (4th Cir. 2001) (enjoining prison from refusing
inmate a benefit on the basis of his race). Indeed, there could not be more narrow
or less intrusive relief than an injunction giving VDOC flexibility to remedy
whichever component underlying its due process violation it believes most
61
appropriate. VDOC points to no less intrusive relief or narrower relief that the
district court could have entered.
15

CONCLUSION
For the foregoing reasons, the judgment and costs award of the district court
should be affirmed.
Respectfully submitted,
/s/ Michael E. Bern
Michael E. Bern
Abid R. Qureshi
Katherine M. Gigliotti
Daniel I. Levy
Suite 1000
(202) 637-2200


15
Even if the courts order failed to satisfy section 3626(a)(1), this Court could
satisfy the PLRA by itself finding that the relief ordered is narrowly drawn and the
least intrusive means necessary to remedy the violation. 18 U.S.C. 3626(b)(3).

CERTIFICATE OF COMPLIANCE WITH
FEDERAL RULE OF APPELLATE PROCEDURE 32(a)

Counsel for Appellee hereby certifies that:
1. This Brief complies with the type-volume limitation of Federal Rule of
Appellate Procedure 32(a)(7)(B). The Brief contains 13,997 words (as calculated
by the word processing system used to prepare this brief), excluding the parts of
the Brief exempted by Federal Rule of Appellate Procedure 32(a)(7)(B)(iii).
2. This Brief complies with the type face requirements of Federal Rule of
Appellate Procedure 32(a)(5) and the type style requirements of Federal Rule of
Appellate Procedure 32(a)(6). The Brief has been prepared in proportionally
spaced typeface using Microsoft Word in 14 point Times New Roman style font.

Dated: May 28, 2014 Respectfully Submitted,
/s/ Michael E. Bern
Michael E. Bern
Suite 1000
(202) 637-2200


CERTIFICATE OF SERVICE

I hereby certify that on the 28th day of May, 2014, the foregoing OPENING
BRIEF FOR PLAINTIFF-APPELLEE was filed with the clerks office for the
United States Court of Appeals for the Fourth Circuit by electronic mail at 4cca-
filing@ca4.uscourts.gov and served on counsel of record via electronic mail.

/s/ Michael E. Bern
Michael E. Bern


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