Prieto - State's 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 (Hon. Leonie M. Brinkema) (1:12-cv-1199)

OPENING BRIEF OF DEFENDANTS-APPELLANTS

MARK R. HERRING
Attorney General of Virginia
CYNTHIA E. HUDSON
Chief Deputy Attorney General
LINDA L. BRYANT (VSB #35010)
Deputy Attorney General,
Public Safety & Enforcement
RICHARD C. VORHIS (VSB #23170)
Senior Assistant Attorney General
rvorhis@oag.state.va.us
KATE E. DWYRE (VSB #82065)
Assistant Attorney General
kdwyre@oag.state.va.us

STUART A. RAPHAEL (VSB #30380)
Solicitor General of Virginia
sraphael@oag.state.va.us
TREVOR S. COX (VSB #78396)
Deputy Solicitor General
tcox@oag.state.va.us

Office of the Attorney General
900 East Main Street
Richmond, Virginia 23219
(804) 786-7240 Telephone
(804) 371-0200 Facsimile
Counsel for Appellants
March 24, 2014

Appeal: 13-8021 Doc: 22 Filed: 03/24/2014 Pg: 1 of 77
10/28/2013 SCC - 1 -
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
DISCLOSURE OF CORPORATE AFFILIATIONS AND OTHER INTERESTS
Disclosures must be filed on behalf of all parties to a civil, agency, bankruptcy or 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. __________ Caption: __________________________________________________
Pursuant to FRAP 26.1 and Local Rule 26.1,
______________________________________________________________________________
(name of party/amicus)
______________________________________________________________________________
who is _______________________, makes the following disclosure:
(appellant/appellee/petitioner/respondent/amicus/intervenor)
1. Is party/amicus a publicly held corporation or other publicly held entity? YES NO
2. Does party/amicus have any parent corporations? YES NO
If yes, identify all parent corporations, including grandparent and great-grandparent
corporations:
3. Is 10% or more of the stock of a party/amicus owned by a publicly held corporation or
other publicly held entity? YES NO
If yes, identify all such owners:
13-8021 Alfredo Prieto v. Harold Clarke, et al.
Harold Clarke
Appellant

- 2 -
4. Is there any other publicly held corporation or other publicly held entity that has a direct
financial interest in the outcome of the litigation (Local Rule 26.1(b))? YES NO
If yes, identify entity and nature of interest:
5. Is party a trade association? (amici curiae do not complete this question) YES NO
If yes, identify any publicly held member whose stock or equity value could be 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 NO
If yes, identify any trustee and the members of any creditors committee:
Signature: ____________________________________ Date: ___________________
Counsel for: __________________________________
CERTIFICATE OF SERVICE
**************************
I certify that on _________________ the foregoing document was served on all parties or their
counsel of record through the CM/ECF system if they are registered users or, if they are not, by
serving a true and correct copy at the addresses listed below:
_______________________________ ________________________
(signature) (date)
s/Kate E. Dwyre 12/30/2013

Harold Clarke
12/30/2013
Katherine M. Gigliotti, Esquire
Michael E. Bern, Esquire
Daniel I. Levy, Esquire
Lantham&Watkins, LLP
555 Eleventh Street, NW, Suite 1000
Washington, DC 20004-1304
E-mail: katherine.gigliotti@lw.com
10/28/2013 SCC - 1 -
the mandamus case.
No. __________ Caption: __________________________________________________
______________________________________________________________________________
______________________________________________________________________________
corporations:
A. David Robinson
Appellant

- 2 -
Signature: ____________________________________ Date: ___________________
Counsel for: __________________________________
**************************
_______________________________ ________________________
(signature) (date)

A. David Robinson
12/30/2013
10/28/2013 SCC - 1 -
the mandamus case.
No. __________ Caption: __________________________________________________
______________________________________________________________________________
______________________________________________________________________________
corporations:
E. Pearson
Appellant

- 2 -
Signature: ____________________________________ Date: ___________________
Counsel for: __________________________________
**************************
_______________________________ ________________________
(signature) (date)

E. Pearson
12/30/2013

iii

TABLE OF CONTENTS
Page
CORPORATE DISCLOSURE STATEMENTS ...................................................... ii
TABLE OF CONTENTS ......................................................................................... iii
TABLE OF AUTHORITIES ................................................................................... vi
J URISDICTIONAL STATEMENT .......................................................................... 1
ISSUES PRESENTED FOR REVIEW ..................................................................... 2
STATEMENT OF THE CASE .................................................................................. 3
STATEMENT OF FACTS ........................................................................................ 8
A. Prietos crimes, trials, and convictions. ................................................ 8
B. Virginias other offenders currently on death row. .............................11
C. The professional judgment of Virginias prison officials about the
importance of segregating death-row offenders. .................................14
D. Virginias prison-housing policies. .....................................................16
E. Prietos complaints about conditions on death row. ...........................20
SUMMARY OF ARGUMENT ...............................................................................27
ARGUMENT ...........................................................................................................31
I. The Supreme Court and Fourth Circuit have repeatedly emphasized
the substantial deference owed to prison officials judgments
concerning conditions of confinement. ......................................................... 31
II. Prieto has no State-law liberty interest in being considered for
placement in the general prison population that entitles him to any
protection under the Due Process Clause. ..................................................... 35

iv

A. State law, not federal law, determines if prisoners enjoy a liberty
interest in avoiding prison conditions that, as in this case, do not
otherwise violate the Constitution. ......................................................36
1. Wolff and Meachum. ................................................................. 36
2. Greenholtz through Hewitt. ....................................................... 38
3. Sandin establishes a second barrier to State-law liberty
claims: the condition must impose atypical and
significant hardship compared to the relevant prisoner
baseline. ..................................................................................... 39
4. The Supreme Court has not yet instructed lower courts
how to determine the relevant baseline for deciding when
a prisoner is exposed to atypical hardship. ............................ 41
5. Lower courts have regularly applied Sandins twin
barriers to recognizing State-created liberty interests. ............. 43
B. Each of Sandins barriers independently requires judgment for
Virginia in this case. ............................................................................45
1. Virginia law creates no reasonable expectation that
capital offenders will be housed anyplace other than
death row. .................................................................................. 46
2. Because death row is sui generis, the relevant baseline
for comparison is death-row housing, not general
prisoner housing. ....................................................................... 47
C. Prieto ignored the requirement to ground the liberty interest in State
law. ......................................................................................................50
D. Even if it were legally relevant to compare Virginias death row to
death row in other States, Virginias segregation of death-row inmates
is not unique. .......................................................................................52

v

III. The District Court improperly second-guessed the professional
judgment of Virginias prison officials that death-row offenders are
too dangerous to house in the general prison population. ............................. 54
IV. The injunction is invalid because it violates Federal Rule 65 and the
Prison Litigation Reform Act. ....................................................................... 56
V. The Court should also vacate the award of attorneys fees and costs. .......... 58
CONCLUSION ........................................................................................................58
STATEMENT REGARDING ORAL ARGUMENET ...........................................60
CERTIFICATE OF COMPLIANCE .......................................................................60
CERTIFICATE OF SERVICE ....................................................................................


vi

TABLE OF AUTHORITIES
Page
CASES
Apanovitch v. Wilkinson,
32 F. Appx 704 (6th Cir. 2002) ..........................................................................50
Austin v. Wilkinson,
No. 4:01-cv-71, 2008 U.S. Dist. LEXIS 24032 (N.D. Ohio Mar.
11, 2008) ..............................................................................................................49
Beard v. Banks,
548 U.S. 521 (2006) ...................................................................................... 34, 35
Bell v. Wolfish,
441 U.S. 520 (1979) .............................................................................................33
Beverati v. Smith,
120 F.3d 500 (4th Cir. 1997)..................................................................... 4, 28, 47
Braun v. Maynard,
652 F.3d 557 (4th Cir. 2011)......................................................................... 32, 56
Brown v. McGinnis,
No. 05-cv-758S, 2012 U.S. Dist. LEXIS 10847 (W.D.N.Y. J an.
20, 2012) ..............................................................................................................44
Burns v. Virginia,
261 Va. 307, 541 S.E.2d 872,
cert. denied, 534 U.S. 1043 (2001) ......................................................................12
Cagle v. Hutto,
177 F.3d 253 (4th Cir. 1999)......................................................................... 57, 58
Conway v. Wilkinson,
No. 2:05-cv-820, 2005 U.S. Dist. LEXIS 31294 (S.D. Ohio Dec.
6, 2005) ......................................................................................................... 49, 56

vii

Filarsky v. Delia,
132 S. Ct. 1657 (2012) .........................................................................................46
Florence v. Bd. of Chosen Freeholders,
132 S. Ct. 1510 (2012) ...................................................................... 32, 33, 34, 35
Frazier v. Coughlin,
81 F.3d 313 (2d Cir. 1996) ...................................................................... 43, 44, 45
Gaston v. Taylor,
946 F.2d 340 (4th Cir. 1991)................................................................................33
Gray v. Virginia,
274 Va. 290, 645 S.E.2d 448 (2007),
cert. denied, 552 U.S. 1151 (2008) ......................................................................11
Green v. Venable,
No. 3:09-cv-154, 2010 U.S. Dist. LEXIS 85928 (E.D. Va. Aug.
10, 2010) ..............................................................................................................44
Greenholtz v. Nebraska Penal Inmates,
442 U.S. 1 (1979) .......................................................................................... 38, 39
Guilbert v. Sennet,
235 F. Appx, 823 (2d Cir. 2007) ........................................................................44
Hewitt v. Helms,
459 U.S. 460 (1983) ................................................................................ 39, 40, 43
Hill v. Lockheed Martin Logistics Mgmt., Inc.,
354 F.3d 277 (4th Cir. 2004)................................................................................31
Hudson v. Palmer,
468 U.S. 517 (1984) ...................................................................................... 32, 35
Juniper v. Virginia,
271 Va. 362, 626 S.E.2d 383,
cert. denied, 549 U.S. 960 (2006) ........................................................................12

viii

Lawlor v. Virginia,
285 Va. 187, 209, 738 S.E.2d 847,
cert. denied, 134 S. Ct. 427 (2013) ......................................................................12
Lee v. Gurney,
No. 3:08-cv-130493, 2010 U.S. Dist. LEXIS 130493 (E.D. Va.
Dec. 9, 2010) ........................................................................................................44
Lisle v. McDaniel,
No. 3:10-cv-00064, 2012 U.S. Dist. LEXIS 170471 (D. Nev. J uly
5, 2012), adopted by 2012 U.S. Dist. LEXIS 170467 (D. Nev.
Nov. 30, 2012) ......................................................................................................49
Lolavar v. de Santibanes,
430 F.3d 221 (4th Cir. 2005)................................................................................45
Mathews v. Eldridge,
424 U.S. 319 (1976) .............................................................................................39
McKune v. Lile,
536 U.S. 24 (2002) ...............................................................................................34
Meachum v. Fano,
427 U.S. 215 (1976) .............................................................. 36, 37, 38, 46, 50, 51
Morva v. Virginia,
278 Va. 329, 683 S.E.2d 553 (2009),
cert. denied, 131 S. Ct. 97 (2010) ................................................................. 12, 13
Olim v. Wakinekona,
461 U.S. 238 (1983) .............................................................................................39
Overton v. Bazetta,
539 U.S. 126 (2003) ................................................................................ 32, 34, 35
Parker v. Cook,
642 F.2d 865 (5th Cir. 1981)................................................................................50
Pearson v. Callahan,
555 U.S. 223 (2009) .............................................................................................45

ix

Pell v. Procunier,
417 U.S. 817 (1974) .............................................................................................35
Peterkin v. Jeffes,
855 F.2d 1021 (3rd Cir. 1988) .............................................................................50
Porter v. Virginia,
276 Va. 203, 661 S.E.2d 415 (2008),
cert. denied, 556 U.S. 1189 (2009) ......................................................................13
Prieto v. Clarke,
No. 1:12-cv-1199, 2013 U.S. Dist. LEXIS 161783 (E.D. Va. Nov.
12, 2013) ...................................................................................................... passim
Prieto v. Davis,
No. 3:13-cv-849 (E.D. Va. 2014) ........................................................................11
Prieto v. Virginia,
133 S. Ct. 244 (2012) ...........................................................................................10
Prieto v. Virginia,
278 Va. 366, 682 S.E.2d 910 (2009) ..................................................... 8, 9, 10, 55
Prieto v. Virginia,
283 Va. 149, 721 S.E.2d 484,
cert. denied, 133 S. Ct. 244 (2012) ............................................................... 10, 55
Prieto v. Warden of the Sussex I State Prison,
286 Va. 99, 748 S.E.2d 94 (2013) ........................................................................10
Puranda v. Hill,
No. 3:10-cv-733, 2012 U.S. Dist. LEXIS 84238 (E.D. Va. 2012) ......................44
Puranda v. Johnson,
No. 3:08-cv-00687, 2009 U.S. Dist. LEXIS 93226 (E.D. Va. Sept.
30, 2009), appeal dismissed, 367 F. Appx 453 (4th Cir. 2010) ............ 44, 45, 51
Rossignol v. Voorhaar,
316 F.3d 516 (4th Cir. 2003)................................................................................31

x

Sandin v. Conner,
515 U.S. 472 (1995) ..................................................................................... passim
Schaffer v. Weast,
554 F.3d 470 (4th Cir. 2009)................................................................................58
Smith v. Coughlin,
748 F.2d 783 (2nd Cir. 1984) ...............................................................................50
Teleguz v. Virginia,
273 Va. 458, 643 S.E.2d 708 (2007),
cert. denied, 552 U.S. 1191 (2008) ......................................................................13
Thornburg v. Abbott,
490 U.S. 401 (1989) .............................................................................................35
Turner v. Safley,
482 U.S. 78 (1987) .................................................................................. 32, 33, 34
VCA Cenvet, Inc. v. Chadwell Animal Hosp., LLC,
No. 13-1369, 2014 U.S. App. LEXIS 869 (4th Cir. J an. 16, 2014).....................31
Vitek v. Jones,
445 U.S. 480 (1980) .............................................................................................38
Wilkinson v. Austin,
545 U.S. 209 (2005) .................................................... 6, 28, 42, 45, 47, 49, 51, 52
Williams v. Wetzel,
No. 12-944, 2013 U.S. Dist. LEXIS 184000 (W.D. Pa. Dec. 9, 2013),
adopted by 2014 U.S. Dist. LEXIS 7428 (W.D. Pa. J an. 22, 2014). ...................48
Wolff v. McDonnell,
418 U.S. 539 (1974) .............................................................. 36, 38, 41, 46, 50, 51
STATUTES
18 U.S.C. 3626(a)(1)(A) ................................................................................ 30, 57
18 U.S.C. 3626(a)(1)(B) ................................................................................ 30, 57
18 U.S.C. 3626(b)(2)...................................................................................... 30, 57

xi

28 U.S.C. 1331 ........................................................................................................ 1
28 U.S.C. 1915A ..................................................................................................... 3
42 U.S.C. 1983 ....................................................................................... 1, 3, 46, 48
2013 Md. Acts ch. 156 .............................................................................................53
Va. Code Ann. 19.2-264.2 (2009) ........................................................................55
1965 W. Va. Acts ch. 40,
codified at W. Va. Code Ann. 61-11-2 (2013) ..................................................53
CONSTITUTIONAL PROVISIONS
U.S. Const. amend VIII ............................................................................. 3, 4, 34, 35
U.S. Const. amend. XIV ....................................................... 3, 35, 36, 37, 39, 41, 52
RULES
Fed. R. App. P. 4(a)(5) ...........................................................................................1, 7
Fed. R. Civ. P. 65(d) ......................................................................................... 30, 56
REGULATIONS
Va. Dept of Corrections, Operating Procedure 460.A .............................. 17, 46, 57
Va. Dept of Corrections, Operating Procedure 830.2 ......................... 17, 19, 46, 57
OTHER AUTHORITIES
Bryan A. Garner, Garners Dictionary of Legal Usage (3d ed. 2011) ...................... 8

1

JURISDICTIONAL STATEMENT
The District Court had jurisdiction, under 28 U.S.C. 1331, over this
prisoner civil rights claim brought by a death-row inmate pursuant to 42 U.S.C.
1983. The District Court entered an order on November 12, 2013, enjoining
Defendants either to provide him with an individualized classification
determination for his prison housing, using procedures that are the same or
substantially similar to the procedures used for all non-capital offenders, or to
improve his conditions of confinement so they do not impose an atypical and
significant hardship. (J A 850-51.) Appellants timely noted their appeal from that
Order on December 9, 2013 (docketed December 12, 2013). (J A 857.) On
J anuary 10, 2014, the District Court denied Defendants motion to stay the
injunction pending appeal. (J A 897.)
The District Court entered a separate order awarding attorneys fees and
costs to plaintiff on December 13, 2013. (J A 858.) On J anuary 27, 2014,
Appellants filed a motion with the District Court, within the time allowed under
Fed. R. App. P. 4(a)(5), to extend the time to note a separate appeal from that
award. (J A 13.) On February 4, 2014, the District Court entered an order stating
that it did not believe that defendants need to file a second Notice of Appeal to
contest the award of attorneys fees and costs to plaintiff because that award is part
of the final judgment of the Court, but the District Court nevertheless granted

2

their motion, finding good cause to extend the time to appeal it. (J A 899.)
Appellants timely noted the appeal on February 6, 2014. (J A 901.)
This Court consolidated the two appeals on February 20, 2014. (Doc. 20.)
The Court has appellate jurisdiction under 28 U.S.C. 1291.
ISSUES PRESENTED FOR REVIEW
Under Sandin v. Conner, courts evaluate due process challenges to prison
conditions by asking if the State imposes atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life, and by determining if
State law has created a liberty interest with regard to the entitlement claimed.
515 U.S. 472, 484 (1995). Neither the Supreme Court nor this Court has applied
Sandin in the context of death-row inmates.
Virginia houses its capital offenders in highly secure, segregated
confinement on death row. Non-death-row prisoners, by contrast, are assigned to
prisons with varying security levels based on a series of individualized factors.
The District Court ordered Virginias prison officials to apply the same or similar
system of individualized factors to Plaintiff, a death-row inmate, or to improve his
current conditions of confinement so they do not impose an atypical and
significant hardship.
The questions presented are whether the baseline for determining if death-
row confinement is atypical under Sandin is the death-row population or the

3

general prison population, and whether Virginia has created a valid liberty
interest on the part of death-row inmates to be considered for housing in the
general prison population.
STATEMENT OF THE CASE
On October 24, 2012, Plaintiff Alfredo Prieto brought a pro se prisoner civil
rights claim against Virginias prison officials under 42 U.S.C. 1983. (J A 2, 14.)
He claimed that the conditions of his solitary confinement on death row constituted
cruel and unusual punishment in violation of the Eighth Amendment, and that the
refusal of prison officials to allow him privileges enjoyed by inmates in the general
prison population, and to consider him for housing there, violated the Due Process
Clause of the Fourteenth Amendment. (J A 18-20.)
Screening his claim under 28 U.S.C. 1915A, the District Court, the Hon.
Leonie M. Brinkema presiding, dismissed Prietos Eighth Amendment claim but
concluded that Prieto had stated a claim that his due process rights have been
violated by his indefinite placement in a special housing unit. (J A 179.)
On November 27, 2012, Prieto appealed the District Courts dismissal of his
Eighth Amendment claim. (J A 186.)
On December 10, 2012, pro bono defense counsel entered an appearance for
Prieto in the District Court. (J A 3.)

4

On J anuary 25, 2013, defendant prison officials, represented by the Office of
the Attorney General of Virginia, filed an answer and motion for summary
judgment. (J A 188, 193.)
On February 6, 2013, this Court dismissed Prietos appeal of his Eighth
Amendment claim for failure to prosecute it. (J A 202, 828.)
As for the due process claims remaining in the District Court, Prietos new
counsel argued that summary judgment was premature because discovery was
needed. The District Court agreed, denying Defendants motion without prejudice;
extensive discovery ensued. (J A 828.)
At the close of discovery, Defendants renewed their summary judgment
motion and Prieto cross-moved for summary judgment. (J A 9.) The District Court
heard oral argument on September 6, 2013. (J A 785.)
On November 12, 2013, the District Court issued a memorandum opinion
granting summary judgment to Prieto and denying it to Defendants. Prieto v.
Clarke, No. 1:12-cv-1199, 2013 U.S. Dist. LEXIS 161783 (E.D. Va. Nov. 12,
2013) (J A 822). The District Court concluded that, under this Courts decision in
Beverati v. Smith, 120 F.3d 500, 504 (4th Cir. 1997), the relevant baseline for
comparing prison conditions on death row were the conditions in the general
prison population at Sussex I State Prison. 2013 U.S. Dist. LEXIS 161783, at *14

5

(J A 834). The opinion did not address whether Virginia law created a liberty
interest on the part of death-row offenders to avoid segregated confinement.
Comparing conditions to the general population, the District Court
concluded that the conditions on death row are uniquely severe, and that death
row inmates like plaintiff are denied all freedom of movement and most freedom to
interact with others. There can be no dispute that almost every aspect of a death
row inmates life is controlled and monitored. Id. at *17 (J A 836-37). The
court [found] it significant that plaintiff has already spent five years in this
placement, and there is no end in sight. Plaintiff has not even begun federal post-
conviction proceedings, which are likely to play out over the course of several
years and further delay the carrying out of his sentence. (J A 837.)
The District Court further found that the nature of plaintiffs confinement
furthers few, if any, legitimate penological goals, such as those that might justify
solitary confinement temporarily for valid punitive, protective, or investigative
purposes. Id. at *21 (J A 840). The court concluded that Prieto has been by all
accounts a model prisoner and had not engaged in any of the behaviors that
would normally support placement in segregated confinement. Id.
The District Court enjoined Virginia to:
provide plaintiff with an individualized classification
determination using procedures that are the same or
substantially similar to the procedures used for all non-

6

capital offenders, and/or that defendants improve
plaintiffs conditions of confinement such that the
confinement does not impose an atypical and significant
hardship. (J A 850-51.)
The courts opinion described that injunction as limited and identified two
ways that Virginia officials could comply:
First, defendants could provide plaintiff with an
individualized classification determination using
procedures that are the same or substantially similar to
the procedures used for all non-capital offenders, as
plaintiff requests. Doing so would likely comport with
the minimal due process requirements described in
Wilkinson [v. Austin, 545 U.S. 209, 226-27 (2005)].
Second, defendants could vary the basic conditions of
confinement on death row, if only slightly, such that
confinement there would no longer impose an atypical
and significant hardship on plaintiff. Id. at *30-31 (J A
848).
As to its second suggestion, the court did not specify which of Prietos many
complaints about the conditions of his confinement would have to be addressed so
that his confinement was no longer atypical compared to conditions in the
general prison population at Sussex I State Prison.
On November 25, 2013, Prieto moved for attorneys fees of $151,734.39 and
costs of $13,661.60. (J A 853). Defendants did not dispute the amounts claimed in
the event the underlying judgment were affirmed on appeal. (J A 855.)

7

On December 9, 2013, Defendants appealed the judgment (although the
appeal was not docketed until December 12, within the 30 days allowed). (J A
857.)
On December 13, 2013, the court awarded Prieto attorneys fees and costs in
the amount he requested. (J A 858.)
On December 20, 2013, Defendants moved to stay the injunction pending
appeal. (J A 12.) They explained at the hearing on J anuary 10, 2014, that in order
to do a meaningful classification of Mr. Prieto, [Virginia officials] would have to
change the classification system as it is now because it does not currently
contemplate a death sentence as it does life sentences; [i]ts asking the
Department to radically change how theyre housing death-sentenced inmates.
(J A 893.) The court responded that the majority of the states within the Fourth
Circuit, in fact, do house their death row inmates differently than does Virginia
(J A 892), that conditions on Virginias death row are inhumane (J A 894), and
that Prieto was entitled to the otherwise rational classification system Virginia
uses for its non-death-row prisoners (J A 895). So the Court denied the motion to
stay the injunction pending appeal. (J A 897.)
On February 4, 2014, the Court granted Defendants motion under Fed. R.
App. P. 4(a)(5) to extend the time to note an appeal from the December 13, 2013

8

Order awarding attorneys fees and costs (J A 899), and Defendants noted that
appeal on February 6, 2014 (J A 901). The appeals have been consolidated here.
STATEMENT OF FACTS
Since October 30, 2008, Prieto has been confined in a special housing unit at
Sussex I State Prison, awaiting the imposition of the death penalty for two
convictions of capital murder. (J A 195, 203, 435.) The unit is commonly
referred to as death row. (J A 435). The phrase death row is used throughout
the United States; it is an Americanism dating from the early 1940s . . . . Bryan
A. Garner, Garners Dictionary of Legal Usage 248 (3d ed. 2011).
A. Prietos crimes, trials, and convictions.
Rachael A. Raver and Warren H. Fulton, III, both 22, were last seen alive
leaving a restaurant together, after midnight on December 4, 1988. Prieto v.
Virginia, 278 Va. 366, 377, 682 S.E.2d 910, 915 (2009) (Prieto I). Two days later,
Ravers partially nude body was found lying in a field . . . in Fairfax County.
Fultons fully clothed body was found about 100 feet away from Ravers body.
Ravers jeans, underpants, gloves, and shoes were found approximately halfway
between the two bodies. Id. Raver received a single gunshot wound to the back
and had scraping of the skin on her abdomen, legs, hands, and face, and a bruise
on her neck, caused by the pushing or pulling of her body . . . . Id. at 378, 682
S.E.2d at 915. Her body was found undressed from the waist down with her legs

9

spread apart on the ground . . . . Id. Biological residues from her thighs and
vagina were collected and preserved. Id. Fulton was killed by a single gunshot,
also into his back. Id. Although investigators attempted in early 1989 to identify a
suspect, there was no match at that time to the DNA evidence found on Ravers
body. Id. at 379, 682 S.E.2d at 915-16.
In September 2005, almost 17 years after the murders, DNA testing
connected Prieto to the crimes. Id. at 379-80, 682 S.E.2d at 916. Prieto was then
being held on death row in California for the rape and murder of a 15-year-old girl
who, like Raver, was found in a remote, open field, partially unclothed, and lying
on her back with her legs spread apart, and who was also killed by a single
gunshot wound. Id. at 380, 682 S.E.2d at 916.
A Fairfax County grand jury indicted Prieto in 2007 for, among other
crimes, the premeditated murder of Fulton and the willful, deliberate, and
premeditated killing of . . . Raver in the commission of or subsequent to rape. Id.
at 375, 682 S.E.2d at 914. After extradition to Virginia and one mistrial, a second
jury found Prieto guilty of two counts of capital murder, two counts of use of a
firearm in the commission of murder, rape, and grand larceny. Id. at 377, 682
S.E.2d at 914. The jury recommended the death sentence for both capital
convictions, and the trial judge imposed it. Id. The Supreme Court of Virginia
affirmed the convictions but vacated the death sentences, remanding for a new

10

penalty proceeding on the capital murder convictions. Id. at 418, 682 S.E.2d at
938.
On remand, a jury unanimously found both aggravating factors of future
dangerousness and vileness, either of which provides sufficient grounds for the
imposition of the death penalty . . . and again recommended two death sentences.
Prieto v. Virginia, 283 Va. 149, 157, 721 S.E.2d 484, 489 (2012) (Prieto II). The
evidence of Prietos prior crimes included felony convictions for:
a drive-by shooting of three people on or about August
25, 1984 and an escape committed on or about August
16, 1985 [;] . . . a series of crimes committed in
California on or about September 2, 1990: the rape and
murder of a 15 year old girl, two attempted murders, two
additional rapes, three kidnappings, two robberies, two
attempted robberies, and possession of a firearm by a
felon. Prieto I, 278 Va. at 380, 682 S.E.2d at 916.
On J anuary 13, 2012, the Supreme Court of Virginia affirmed the imposition
of the death sentence. Prieto II, 283 Va. at 157, 721 S.E.2d at 489. On October 1,
2012, the U.S. Supreme Court denied Prietos petition for certiorari. Prieto v.
Virginia, 133 S. Ct. 244 (2012) (Prieto III). On September 12, 2013, the Supreme
Court of Virginia denied his State habeas petition. Prieto v. Warden of the Sussex
I State Prison, 286 Va. 99, 748 S.E.2d 94 (2013) (Prieto IV). The District Court
for the Eastern District of Virginia has ordered Prietos counsel to file his federal

11

habeas petition by no later than April 2, 2014. Prieto v. Davis, Mem. Order, No.
3:13-cv-849 (E.D. Va. J an. 8, 2014) (ECF#21) (Prieto V).
B. Virginias other offenders currently on death row.
The other death-row inmates housed at Sussex I State Prison were also
sentenced to death for egregious crimes.
Ricky J avon Gray. Gray was convicted of murdering a family of four
Kathryn and Bryan Harvey, their 9-year-old daughter Stella, and their 4-year-old
daughter Rubyduring a New Years Day robbery in 2006. Gray v. Virginia, 274
Va. 290, 645 S.E.2d 448 (2007), cert. denied, 552 U.S. 1151 (2008). Gray forced
the family to the basement of their home, bound their hands and feet, slit their
throats with a razor knife, repeatedly bludgeoned their heads with a claw hammer,
and stabbed them with a knife; when the victims stopped moving, he set fire to
their house. Id. at 296-97, 645 S.E.2d at 452-53. Gray confessed to other crimes:
murdering three members of another family in a separate incident the same day, id.
at 299, 645 S.E.2d at 454; repeatedly stabbing another man the night before, id. at
300, 645 S.E.2d at 454-55; and bludgeoning his wife to death with a lead pipe, id.
at 299, 645 S.E.2d at 454.
Anthony Bernard J uniper. On J anuary 16, 2004, J uniper murdered his
girlfriend, Keshia Stephens, two of her daughters (ages 4 and 2), and Keshias
brother; he stabbed Keshia in the stomach with a knife and shot all the victims

12

multiple times. Juniper v. Virginia, 271 Va. 362, 376-77, 626 S.E.2d 383, 393-94,
cert. denied, 549 U.S. 960 (2006). While the two-year-old was still in her mothers
arms, J uniper shot the toddler four times, including firing a bullet into the crown of
the childs head. Id. at 376-77, 626 S.E.2d at 394.
William J oseph Burns. Burns was convicted of raping, anally sodomizing,
and murdering his 73-year-old mother-in-law in 1998. Burns v. Virginia, 261 Va.
307, 313, 541 S.E.2d 872, 877, cert. denied, 534 U.S. 1043 (2001). He inflicted
multiple injuries to her head and chest and caused 24 fractures to her ribs, one of
which may have punctured her heart. Id. at 315, 541 S.E.2d at 878-79. His other
convictions included felony theft, breaking and entering, malicious destruction of
property, resisting arrest, battery, assault, disorderly conduct, and a third-degree
sex offense. Id. at 318, 541 S.E.2d at 880.
Marc Eric Lawlor. Lawlor was convicted of the 2008 beating death of
Genevieve Orange, whom Lawlor also sexually assaulted. Lawlor v. Virginia, 285
Va. 187, 209, 738 S.E.2d 847, 859, cert. denied, 134 S. Ct. 427 (2013). Lawlor
bludgeoned her 47 times with various objects, including a metal pot and frying
pan. Id.
William Charles Morva. Morva was convicted of murdering two men in
2006 while in custody, awaiting trial on burglary and firearm charges. Morva v.
Virginia, 278 Va. 329, 683 S.E.2d 553 (2009), cert. denied, 131 S. Ct. 97 (2010).

13

While claiming to need medical attention, Morva escaped from the local hospital,
attacked and knocked unconscious a sheriffs deputy, stole his gun, and used it to
kill an unarmed hospital security guard by shooting him in the face from two feet
away, despite that the guard tried to surrender. Id. at 335-36, 683 S.E.2d at 557.
Before being apprehended the next day, Morva also killed a sheriffs deputy by
shooting him in the back of the head. Id. at 336-37, 683 S.E.2d at 557.
Thomas Alexander Porter. Porter was convicted for the 2005 murder of
Norfolk police officer Stanley Reaves after Reaves responded to reports that Porter
was brandishing a firearm and threatening a group of women in a nearby
apartment. Porter v. Virginia, 276 Va. 203, 216-17, 661 S.E.2d 415, 419-20
(2008), cert. denied, 556 U.S. 1189 (2009). When Officer Reaves arrived to
question him, Porter shot Reaves three times in the head and neck. Id. at 218, 661
S.E.2d at 420-21.
Ivan Teleguz. Teleguz was convicted of murder for hire in connection with
the 2001 slaying of Stephanie Sipe, his ex-girlfriend and mother of his infant son.
Teleguz v. Virginia, 273 Va. 458, 467, 643 S.E.2d 708, 714 (2007), cert. denied,
552 U.S. 1191 (2008). One of the two men hired by Teleguz, following his
instruction that he wanted Sipes throat cut, stabbed Sipe in her trachea, larynx
and esophagus, severing a major artery. Id. at 468, 643 S.E.2d at 714-15.

14

C. The professional judgment of Virginias prison officials about the
importance of segregating death-row offenders.
Prietos counsel deposed Virginias senior prison officials, including the
agency head and the warden at Sussex I State Prison. Defendant Harold C. Clarke
is the Director of the Virginia Department of Corrections, where he has served
since 2010. (J A 580, 583). He is the official responsible for promulgating the
Departments policies. (J A 593.) Director Clarke has worked as a corrections
professional for forty years (since 1974), including prior service as the Director of
the Nebraska Department of Corrections, the Secretary of Corrections for
Washington State, and the Commissioner of Corrections for the Commonwealth of
Massachusetts. (J A 583-84, 588, 591.)
The warden at Sussex I State Prison is Keith W. Davis. (J A 435.)
1
Davis
has worked for the Virginia Department of Corrections for 30 years. (J A 290.)
J ames Parks is the Director of Offender Management Services for the Department
of Corrections, where he has worked for 24 years. (J A 694, 698.) Defendant A.
David Robinson is Chief of Corrections Operations. (J A 340.)
The Defendants testified as to why, in their professional judgment, it was
important for death-row inmates to be confined in segregated conditions in a
single, maximum security facility, and not to be considered for housing among the

1
Defendant Eddie L. Pearson was the warden of Sussex I State Prison when Prieto
filed his lawsuit. (J A 195, 340.)

15

general prison population. (See, e.g., Clarke Dep. at J A 634-36, 639-48, 650-53,
656-60, 674, 678-79, 686-87; Robinson Dep. at J A 262, 573 (the propensity for
something to go wrong [is] a lot more severe and if it goes wrong, it could be very
serious); Davis Dep. at J A 286; Parks Dep. at 724, 753.)
As Director Clarke put it:
Theyre segregated because we see those individuals as
potentially the most desperate of all the offenders.
Again, they have been sentenced to die. They have
nothing to lose. They dont even look forward to a life in
prison in which they can improve themselves, change
their ways, [and] help other individuals for the rest of
their life until they die of natural causes. They have been
sentenced to die and as soon as the appeal process is
completed, a date is set, that sentence will carry out. (J A
639 (emphasis added).)
Clarke explained that, although death-row inmates may act out less often than
other prisoners, particularly when pursuing their legal efforts to avoid execution
(J A 653), they sometimes lash out when legal setbacks occur (J A 655). He also
testified how prisoners who may outwardly appear to have repented may simply
be playing games, cautioning that when we misread whats going on it can be
catastrophic. (J A 648.)
Director Clarke explained his concern that permitting death-row offenders to
congregate with other prisoners would pose an unacceptable safety risk. He
described an incident in the 1980s in which death-row inmates who had been

16

permitted to congregate at the maximum security prison in Mecklenberg staged a
mass escape, an incident that could have been catastrophic had they not been
apprehended. (J A 643.)
He further testified that, while no prisoner had yet escaped from Sussex I
State Prison, there was a much higher risk of escape from among the general
population housed there than from its death-row unit:
[O]ffenders in general population are moving about, they
can see the fences. They can plan. They can study staff
patterns of behavior and so forth and eventually find a
way out.
I have been in this business long enough where there
have been escapes from high security facilities where
offenders did just exactly what I said. They have all the
time in the world to sit in the yard, to become familiar
with staff, to become familiar with patterns of behaviors,
the way things are done, and they can execute. And
when they do it youll be left wondering where are they
as they found that one seam theyre able to get through.
And that is not something that we would want to ever
occur with an offender whos on death row. (J A 644-45.)
D. Virginias prison-housing policies.
The Virginia Department of Corrections operates more than three dozen
correctional units and other major facilities throughout the Commonwealth,
including Sussex I State Prison with its segregated unit for death-row prisoners.
2

2
See http://vadoc.virginia.gov/facilities/ (listing facilities).

17

The Department is responsible for approximately 39,000 prisoners. (J A 617-18.)
It has been quite successful in meeting its goals. (J A 713.) The Department, in
fact, has experienced relatively little unrest at its facilities and fewer prisoner
assaults compared to prison systems in other States. (Id.; J A 621 (very
successful).)
As noted above, death-row prisoners are automatically sent to death row at
Sussex I State Prison. Operating Procedure 830.2(D)(7) provides that [a]ny
offender sentenced to Death will be assigned directly to Death Row . . . . (J A
196, 199, 221.) The Procedure further states that they will not be considered for
reclassification to a different facility. (J A 199, 221, 227.19.) Operating Procedure
460.A(I), Security of Offenders Under the Sentence of Death, likewise establishes
a policy to prohibit death-row offenders from being housed with general
population prisoners. (J A 941.)
By contrast, all non-death-row prisoners are evaluated under a classification
system to determine where to house them. The scoring system decides their
placement at facilities ranging from minimum security, Level 1 facilities, to
maximum-security Level 5 facilities, to even more restrictive segregation for
disruptive and assaultive offenders at a Level S facility like Red Onion State
Prison. (J A 219, 622-23.)

18

The general prison-population housing at Sussex I State Prison is a Level 5
facility; approximately 1,000 prisoners are housed there. (J A 295). It has
approximately 126 prisoners in administrative segregation. (Id.) (The death row
unit is isolated from the rest of the prison and has 44 segregated cells. (J A 370).)
To decide where to place non-death-row prisoners, the Security Level
point-scoring system uses the following eight factors:
history of institutional violence;
severity of current offense;
prior offense history severity;
escape history;
length of time remaining to serve;
current age;
prior felony convictions; and
other stability factors. (J A 244.)
Then, based on various mitigating and aggravating factors, prison officials may use
their discretion to increase or decrease the prisoners score. (J A 220.) Additional
factors determine whether non-death-row prisoners qualify for administrative
segregation (solitary confinement), such as whether they have committed
aggravated assaults on staff, present serious escape risks, or have seized or held
hostages. (J A 223-24.) General population prisoners may also be held in

19

segregative confinement for disciplinary reasons, but disciplinary segregation does
not exceed 60 days. (J A 623.)
The scoring thresholds set forth in Operating Procedure 830.2 (at J A 219)
are as follows:

Thus, prisoners with a score of 32 points or higher would be sent to a Level 5
facility like Sussex I State Prison. Non-death-row prisoners are then evaluated
annually to review whether their placement is appropriate. (J A 221-23; 624-25.)
3

Because the computer system that tracks each prisoners place of
confinement requires inputting a Security Level number for all inmates, prisoners
sentenced to death are assigned the number 99 to reflect their categorical
assignment to death row. As the official responsible for operating the computer
system explained: Thats the only way the system will take it . . . . [The number]
99 has no other significance . . . . (J A 749.)

3
Misconduct by a prisoner may trigger a classification review before the annual
review. (J A 222-23.)

20

E. Prietos complaints about conditions on death row.
If Prieto were housed in the general population of a Level 5 facility like
Sussex I State Prison, his prison mates would include persons convicted of
offenses ranging from driving under the influence and violating parole, to habitual
offenders driving on suspended licenses, to more serious offenders convicted of
murder, robbery and rape. (J A 296.) Prietos counsel argued in the District Court,
however, that given Prietos good conduct since his arrival on death row, he would
score 25 points (before any discretionary adjustments) if death-row inmates like
him were evaluated as if they were serving a life-without-parole sentence for
murder. (J A 777-81.) A score of 25 would make him eligible to be housed in a
Level 3 facility. (J A 219.) His counsel allowed that discretionary review could
properly place Prieto instead in a Level 4 or Level 5 facility (J A 789, 791-92) but
said Prieto would object to it as disingenuous if prison officials used their
discretion to conclude that he should remain in segregated conditions based solely
on the capital offenses for which he has been sentenced to death (J A 813-14).
Prietos other complaints about his death-row housing included:
that he is kept in his cell for 23 hours a day and must take all three meals
there. (J A 204.) But the same is true of prisoners held in administrative
segregation (including those housed at Level S facilities). (J A 334-35, 684);

21

that he has minimal human contact. Other than interactions with the units
guards, infrequent visits by my attorneys, and when I occasionally cut
another inmates hair, I have almost no other human contact, he said. (J A
205.) But death-row inmates are also visited by a mental health practitioner
at least once a week and receive twice daily visits from medical personnel.
(J A 437.) They are also afforded the opportunity of out-of-cell recreation
for one hour a day, five times per week, unless security or safety concerns
dictate otherwise. (J A 204, 437.) During out-of-cell recreation, they may
see and converse with other death row offenders in the recreation area.
(J A 437.)
that he is not permitted to have contact visits with family members. (J A
206.) But the same is true of prisoners in administrative segregation and
Level S segregation. (J A 392.) Offenders on death row and in
administrative segregation are permitted, however, to have non-contact and
video visitation during the same visiting hours enjoyed by general popula-
tion prisoners. (J A 328, 392, 438.) And at the Wardens discretion, death-
row inmates may be permitted contact visits with immediate family
members every six months. (J A 392, 349-50, 681-82.) The record reflects
that none of the 11 contact-visit requests by death-row inmates between
September 2008 and December 2012 was granted (J A 350), but that statistic

22

sheds no light on the circumstances why. And although Prieto complained
that every request I have ever submitted to have a contact visit with
immediate family has been denied by the Warden, he admitted in the same
affidavit that [a]ll of my immediate family lives in California and I rarely
have visitors. (J A 206.)
that he has a poor view from his window. Indeed, Prietos prison-conditions
expert explained that poor-window views are common in solitary
confinement at prisons in other States, looking out on virtually nothing that
is visually appealing; some cells, like those at Pelican Bay in California,
have no window at all. (J A 408.) But the evidence below actually showed
that, while an inmate standing on the floor of a death-row cell at Sussex I
State Prison would see only sky, by elevating oneself (such as by standing
on the bed next to the window, see J A 938, 939), a person can see fields,
trees, things of nature. (J A 358.) The windows there are also the same size
as in general population cells, except that the windows in both death-row
and administrative-segregation cells have wire mesh across them to prevent
prisoners from burning holes in the Plexiglass through which to pass
contraband. (J A 278, 322.) Wire mesh is being installed on the windows in
the general population cells too, but not all have been outfitted yet; prison

23

officials started first with the cells on death row and in administrative
segregation units. (J A 322.)
that the cells are small and Prieto must rotate cells every month. (J A 205,
411.) But the cells on death row are comparable in size to cells in the
general population units. (J A 437.) The cells measure 71 square feet. (J A
343, 823; see Photographs at J A 938, 940.)
4
Offenders in the general
population, by contrast, must share a cell with another inmate. (J A 467.) So
death-row offenders actually have more personal space than general
population prisoners. And cell rotation is necessary to guard against escape
efforts, concealed weapons, and contraband. (J A 285.)
that death-row prisoners cannot attend religious services, unlike prisoners in
the general population. (J A 206, 309.) But death-row offenders are
permitted visits directly in their cell from the Institutional Chaplain and
approved religious volunteers, privileges not afforded to inmates in
disciplinary segregation. (J A 437.) Prieto, who is Catholic, admitted that he

4
The 71-square-foot figure comes from Director Clarkes sworn Interrogatory
Answers (J A 343) and was the figure found by J udge Brinkema in her
Memorandum Opinion (J A 823). Earlier estimates by Defendants used the figure
31.16 square feet. (J A 190, 196.) But Prietos expert pointed out that that estimate
was too low. (J A 410 n.7 (offering his impression . . . that the actual square
footage is closer to 50-60 square feet).) He noted that death-row cells nationwide
range from 55 to 90 square feet. (J A 406.)

24

did once successfully request a visit from a Catholic priest, although the
process was difficult. (J A 206.)
that death-row inmates have little to do to occupy their time. But they are
allowed to have a television and compact disc player in their cells, privileges
not afforded to offenders in administrative, Level S, or disciplinary
segregation. (J A 336, 355, 437, 684.) Death-row inmates may also
purchase commissary items, including food, whereas those in disciplinary
segregation may purchase only personal hygiene items and writing
materials. (J A 437, 688.) Death-row inmates also have the same telephone
privileges as prisoners in the general population8:30 a.m. to 9:30 p.m., 7
days per week. (J A 437.) Except, as Prieto explained, [i]f I need to make a
telephone call, a telephone is brought to my cell. (J A 205.)
that death-row inmates, like those in administrative segregation, are
ineligible to attend classes. (J A 325, 334.) But prison officials explained
that their limited resources do not allow for that. (J A 604-05, 641, 649-51,
656-58.) Similar resource constraints require denying such opportunities to
offenders serving life terms in the general prison population. (J A 605,
616.)
5
With regard to providing education and job training, the Department
places its priority on offenders who are closer in time to being released, in

5
Death-row offenders are the most expensive-per-inmate to house. (J A 266.)

25

order to facilitate their re-entry into civil society and reduce the risk of their
recidivism. (E.g., J A 602 (You can equate effective re-entry programming
with improved public safety . . . . Because when you do a good job with
effective reintegrating, they have options.).)
that he is not permitted to visit the law library; [s]ometimes [his] requests
for copies of legal decisions are delayed or ignored, and he cannot receive
legal texts, treatises or properly conduct legal research. (J A 205-06.) But
[w]ith regard to legal services, death row offenders have more access than
even offenders in the general population because of their ongoing appeals.
Death row offenders may request legal materials at any time, which are
delivered to their cells and [they] may request the phone to call their attorney
and set up a visit directly; offenders in disciplinary segregation must make a
request through their counselor for a legal call or visit. (J A 438; J A 463.)
that his cell is not totally dark at night; he may dim but not completely turn
off the nightlight in his cell, and he is not permitted to block out the light.
(J A 204.) But it is important, for safety and security reasons, for guards to
be able to see into an inmates cell at ANY time. (J A 200, 11.)
that his hands and feet are shackled whenever he leaves his cell. (J A 204.)
But the regulations require this for the safety of the guards and other
prisoners. (J A 167, 200.)

26

that he is permitted to shower three times a week and [t]here is no
temperature control. (J A 204.)
Prietos expert also opined that while Mr. Prieto was confined from 1992-
2006 on Californias death row at San Quentin, the conditions he experienced were
in some ways substantially less harsh. (J A 412.) In particular, he said, Prieto
could recreate 12 hours a week in a large yard at San Quentin, together with other
prisoners; use a punching bag; play cards, basketball, dominos, and ping pong with
other prisoners; and attend group religious activities. (Id.) Death-row inmates at
San Quentin also enjoyed liberal contact visits, and their cells had windows
allowing a pleasant view of the ocean, bridges, and boats passing by. (Id.)
But Director Clarke was not persuaded that Virginia should change its
approach. In his professional judgment, the risks were simply too great:
[W]e dont want to put ourselves in a position wherein
were going to treat this population as the general
population because of all of the things that could go
wrong. Theyre not similarly situated as offenders in the
general population . . . . [T]hey have been sentenced to
die and we expect that is going to go on anywhere from
seven, and as you said, to ten years. In the process -- in
the meantime theyre appealing the sentences and they're
being treated as humanly -- theyre given access to the
courts, doing all those things that are necessary and
mandated constitutionally. And to go beyond that I think
increases the level of risk that we will face in the
department and to which we will expose the people of the
Commonwealth . . . . (J A 678-79.)

27

SUMMARY OF ARGUMENT
Federal courts reviewing prisoner complaints about the conditions of their
confinement are required to give substantial deference to the judgment of prison
officials. The Supreme Court and Fourth Circuit have repeatedly discussed the
inordinately difficult task of operating a prison and the need to defer to the expert
judgment of corrections officials in order to ensure the safety of prisoners, prison
staff, and the public at large. Deference to their professional judgment is required
even when prisoners claim that their conditions of confinement violate
fundamental constitutional rights, such as rights protected under the First, Fourth
and Eighth Amendments. J udicial deference is afforded not simply because prison
administrators have a better grasp of the conditions and dangers in the prisons they
operate, but because the task of prison administration is committed to the
responsibility of the executive and legislative branches. And where, as here, the
case involves a State penal system, federalism principles provide an additional
reason for deference.
This case involves no claim that conditions on Virginias death row
independently violate the Constitution. The District Court rejected Prietos Eighth
Amendment claim, and this Court dismissed his appeal because he failed to
prosecute it. Instead, the question here is whether Virginia law gives rise to a

28

State-created liberty interest on the part of capital offenders to be considered for
housing in the general prison population.
In addition to requiring the prisoner to identify a State-law liberty interest to
support his Due Process claim, however, the Supreme Court in Sandin v. Conner
imposed an additional barrier: the prisoner must show that his confinement
imposes atypical and significant hardship on the inmate in relation to the ordinary
incidents of prison life. 515 U.S. 472, 484 (1995). Sandin created that barrier
after the Court became concerned that its case law had created a disincentive for
prison officials to memorialize their procedures and an incentive for prisoners to
scour through prison regulations to find State-law grounds for demanding due
process. Sandin was meant to restrict condition-of-confinement claims, not to
make them easier to bring.
Sandin, and the Courts later decision in Wilkinson v. Austin, 545 U.S. 209
(2005), did not instruct lower courts how to decide the baseline for determining
whether the prison conditions in question are atypical. And neither Sandin nor
Wilkinson involved a claim by a death-row inmate. Nor has this Court decided the
relevant baseline for death-row offenders. Like Sandin and Wilkinson, Beverati v.
Smith, 120 F.3d 500 (4th Cir. 1997), involved general population prisoners who
were placed into segregative confinement. It did not evaluate condition-of-

29

confinement claims by death-row inmates, and nothing in Beverati suggests that
they should be compared to general population prisoners.
Death-row confinement is sui generis. Indeed, every court to consider the
question (with the exception, now, of the district court below) has held that the
baseline under Sandin for evaluating condition-of-confinement claims by death-
row inmates is the condition of confinement of other offenders that the State has
sentenced to death.
In any event, Prieto cannot satisfy the threshold requirement to identify a
liberty interest created under Virginia law that would entitle him to be considered
for housing in the general prison population. The Operating Procedures of the
Virginia Department of Corrections make clear that all capital offenders will be
housed on death row at Sussex I State Prison and will not be considered for
reclassification.
The District Court also erred by looking to death-row conditions in other
States. What other States may do is not probative of whether Virginia has created
a State-law entitlement on the part of death-row inmates to be considered for
housing in the general prison population. And the survey data Prieto introduced
into the record actually confirm that Virginia is not unique in its housing of death-
row offenders.

30

The District Court also erred in concluding that there is no difference
between death-row offenders and offenders sentenced to life in prison without
parole. Death-row offenders cannot be sentenced to death unless a jury or judge
has found that they pose a unique danger to society. Moreover, the District Court
improperly second-guessed the judgment of Virginias top corrections officials,
who gave extensive testimony below that it is important for security and the safety
of the public to house death-row offenders in segregative confinement, pending the
imposition of their sentence. Ignoring that testimony was error in light of the clear
directives of the Supreme Court and Fourth Circuit to defer to the professional
judgment of State prison officials. Virginias officials acted within their
reasonable professional judgment and expertise in determining that death-row
offenders have nothing to lose and present unique escape risks and dangers to other
prisoners and to the public.
The District Courts injunction is invalid on other grounds as well. It failed
to meet the requirements of Fed. R. Civ. P. 65(d) because it does not describe in
detail the acts required of Virginias prison officials. It also violated the Prison
Litigation Reform Act by overriding State law without including the required
findings that Federal law requires State law to be overridden, that such relief is
necessary to correct the violation of a Federal right, and that no other relief would
suffice.

31

In this case, however, no injunction should have been entered at all because
Prieto failed to satisfy either of Sandins predicates for establishing a State-law
liberty interest. Accordingly, the complaint should be dismissed and the injunction
dissolved, and the award of costs and attorneys fees to Prieto should be vacated.
ARGUMENT
This Court reviews de novo a district courts decision to grant summary
judgment. Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 283 (4th
Cir. 2004) (en banc). Where, as here, the Court is faced with cross-motions for
summary judgment, it should review each motion separately on its own merits
to determine whether either of the parties deserves judgment as a matter of law.
VCA Cenvet, Inc. v. Chadwell Animal Hosp., LLC, No. 13-1369, 2014 U.S. App.
LEXIS 869, at *5-6 (4th Cir. J an. 16, 2014) (quoting Rossignol v. Voorhaar, 316
F.3d 516, 523 (4th Cir. 2003)). In considering each individual motion, [the Court
should] resolve all factual disputes and any competing, rational inferences in the
light most favorable to the party opposing that motion. Id. at *6 (citation and
quotation omitted).
I. The Supreme Court and Fourth Circuit have repeatedly emphasized the
substantial deference owed to prison officials judgments concerning
conditions of confinement.
The difficulties of operating a detention center must not be underestimated
by the courts. Florence v. Bd. of Chosen Freeholders, 132 S. Ct. 1510, 1515

32

(2012). It is an inordinately difficult undertaking that requires expertise,
planning, and the commitment of resources, all of which are peculiarly within the
province of the legislative and executive branches of government. Turner v.
Safley, 482 U.S. 78, 85 (1987). Maintaining safety and order at these institutions
requires the expertise of correctional officials, who must have substantial
discretion to devise reasonable solutions to the problems they face. Florence, 132
S. Ct. at 1515. Prison officials must, among other things: take reasonable
measures to guarantee the safety of the inmates themselves; be ever alert to
attempts to introduce drugs and other contraband; prevent, so far as possible, the
flow of illicit weapons into the prison; be vigilant to detect escape plots . . . before
the schemes materialize; and maintain as sanitary an environment for the inmates
as feasible, given the difficulties of the circumstances. Hudson v. Palmer, 468
U.S. 517, 526-27 (1984).
Recognizing prison as a special case, the Supreme Court has repeatedly
called for substantial deference to the professional judgment of prison
administrators, who bear a significant responsibility for defining the legitimate
goals of a corrections system and for determining the most appropriate means to
accomplish them. Overton v. Bazetta, 539 U.S. 126, 132 (2003) (collecting
cases). In Braun v. Maynard, 652 F.3d 557 (4th Cir. 2011), this Court too
cautioned against judicial micromanagement of prison officials:

33

Federal judicial micromanagement of state prison
administration risks unforeseen and counterproductive
consequences, and courts therefore afford prison
administrators latitude in dealing with this volatile
environment and the risks it poses to the health and
safety both of prison staff and of the inmates
themselves . . . .
Id. at 563 (citations omitted); see also Gaston v. Taylor, 946 F.2d 340, 343 (4th
Cir. 1991) (en banc) (broad discretion in the management of the prison).
[J ]udicial deference is accorded not merely because the [prison]
administrator ordinarily will, as a matter of fact in a particular case, have a better
grasp of his domain than the reviewing judge, but also because the operation of our
correctional facilities is peculiarly the province of the Legislative and Executive
Branches of our Government, not the J udicial. Bell v. Wolfish, 441 U.S. 520, 548
(1979). Because the task of prison administration has been committed to the
responsibility of those branches, . . . separation of powers concerns counsel a
policy of judicial restraint. Turner, 482 U.S. at 85. Where a state penal system
is involved, federal courts have . . . additional reason to accord deference to the
appropriate prison authorities. Id.
Deference is owed to the reasonable judgment of prison officials even when
a prisoner claims that the conditions of his confinement violate his constitutional
rights. For example, the Supreme Court in Florence held that the Fourth
Amendment does not require reasonable suspicion as a condition of conducting

34

routine strip searches of pretrial detainees. 132 S. Ct. at 1513-14. The Court
repeated its longstanding rule that a regulation impinging on an inmates
constitutional rights must be upheld if it is reasonably related to legitimate
penological interests. Id. at 1515 (quoting Turner, 482 U.S. at 89). The Court
emphasized that, [i]n addressing this type of constitutional claim courts must
defer to the judgment of correctional officials unless the record contains
substantial evidence showing their policies are an unnecessary or unjustified
response to problems of jail security. Id. at 1513-14 (emphasis added).
The Court in Overton similarly rejected Eighth Amendment and due process
challenges to prison policies prohibiting contact visits for certain categories of
offender. 539 U.S. at 131-37. The Court said [t]he very object of imprisonment
is confinement. Many of the liberties and privileges enjoyed by other citizens must
be surrendered by the prisoner. Id. at 131. And the Court has also ruled that the
First Amendment does not preclude a policy by which prison officials offer or
withhold newspapers and magazines from violent offenders as an incentive to
improve their conduct. Beard v. Banks, 548 U.S. 521, 525 (2006) (opinion by
Breyer, J ., joined by Roberts, C.J ., and Kennedy and Souter, J J .); id. at 540
(Thomas, J ., concurring, joined by Scalia, J .). Other examples abound.
6

6
E.g., McKune v. Lile, 536 U.S. 24, 39 (2002) (plurality opinion) (rejecting Fifth
Amendment challenge to incentive system for rape offenders to admit their past

35

II. Prieto has no State-law liberty interest in being considered for
placement in the general prison population that entitles him to any
protection under the Due Process Clause.
Unlike cases such as Florence, Overton, and Beard, this appeal does not
involve any claim that State-prison officials have violated rights that are created by
the Constitution itself. The district court dismissed Prietos Eighth Amendment
challenge to his solitary confinement and to the policy denying him more liberal
contact-visitation rights. (J A 182-83.) This Court dismissed Prietos appeal from
that ruling because he failed to prosecute it. (J A 202.)
Thus, the only claim that remains is Prietos argument that he has been
denied due process because prison officials, inter alia, failed to consider him for
housing among the general prison population. But as shown below, that claim
depends on proving both that (1) the conditions of Prietos confinement are
atypical compared to other death-row inmates, and (2) Virginia law creates an
entitlement on the part of death-row prisoners to be considered for housing among
the general prison population. Prieto cannot make either showing.

crimes); Thornburg v. Abbott, 490 U.S. 401, 407-08 (1989) (rejecting First
Amendment challenge to policy for screening and rejecting incoming publications
found to be detrimental to prison security); Hudson, 468 U.S. at 526-27 (holding
that prison inmates are not entitled to Fourth Amendment protection against
unreasonable searches and seizures in their individual cells); Pell v. Procunier, 417
U.S. 817, 822 (1974) (upholding prison regulation denying face-to-face contact by
prisoners with reporters).

36

A. State law, not federal law, determines if prisoners enjoy a liberty
interest in avoiding prison conditions that, as in this case, do not
otherwise violate the Constitution.
When the Constitution itself does not entitle prisoners to avoid particular
conditions of confinement, it is possible for State law to create a valid liberty
interest that cannot be taken away from them except in accordance with reasonable
procedures that meet the standards of the Due Process Clause of the Fourteenth
Amendment. The seminal cases on this point were Wolff v. McDonnell, 418 U.S.
539 (1974), and Meachum v. Fano, 427 U.S. 215 (1976).
1. Wolff and Meachum.
In Wolff, the Court held that, while the Constitution itself did not guarantee
Nebraska prisoners good time credits for good behavior, Nebraska itself had
created a liberty interest in good time credits that triggered protection under the
Due Process Clause:
Nebraska may have the authority to create, or not, a right
to a shortened prison sentence through the accumulation
of credits for good behavior . . . . But the State having
created the right to good time and itself recognizing that
its deprivation is a sanction authorized for major
misconduct, the prisoners interest has real substance and
is sufficiently embraced within Fourteenth Amendment
liberty to entitle him to those minimum procedures
appropriate under the circumstances and required by the
Due Process Clause to insure that the state-created right
is not arbitrarily abrogated. Id. at 557 (emphasis altered).

37

The Courts treatment of such State-created liberty interests thus parallels its
treatment of State-created property interests that also become entitled to due
process protection. Id. A persons liberty is equally protected, even when the
liberty itself is a statutory creation of the State. Id. at 558.
In Meachum, the Court held Massachusetts law had not created any liberty
interest on the part of prisoners to be given any process before they were
transferred from a low-security to a maximum-security prison. The Court
explained that the Due Process Clause, by its own force, forbids States from
convicting defendants and depriving them of their liberty without complying fully
with the requirements of the Clause. 427 U.S. at 224. But given a valid
conviction, the criminal defendant has been constitutionally deprived of his liberty
to the extent that the State may confine him and subject him to the rules of its
prison system so long as the conditions of confinement do not otherwise violate the
Constitution. Id.
7
And the State may constitutionally confine the prisoner in any
facility (or transfer him to any facility) warranted by the original sentence:
Confinement in any of the States institutions is within
the normal limits or range of custody which the
conviction has authorized the State to impose. That life
in one prison is much more disagreeable than in another

7
The District Court here found that Prieto undoubtedly received process in the
Virginia state courts before he was removed from free society; he does not argue
otherwise. (J A 847.)

38

does not in itself signify that a Fourteenth Amendment
liberty interest is implicated when a prisoner is
transferred to the institution with the more severe rules.
Id. at 225.
No State-created liberty interest arose in Meachum because Massachusetts
law did not give the prisoner any entitlement to avoid being housed in a maximum-
security facility. Id. at 226 (Massachusetts law conferred no right on the prisoner
to remain in the prison to which he was initially assigned, defeasible only upon
proof of specific acts of misconduct.). Thus, the basis for invoking the due
process protection in Wolff was totally nonexistent in Meachum. Id. at 227.
2. Greenholtz through Hewitt.
After Wolff and Meachum, however, the Court embarked on a different
approach to defining state-created liberty interests, Sandin, 515 U.S. at 479,
deciding a series of condition-of-confinement cases in which it began by rigorously
scrutinizing State prison rules and regulations to determine if the State had created
a liberty interest that triggered due process protection:
Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 12, 16 (1979)
(holding that expectancy of parole provided by Nebraskas parole
statute entitled inmates to due process protection, but that Nebraskas
hearing, notice, and decision-making procedures satisfied due
process);
Vitek v. Jones, 445 U.S. 480, 489-90 (1980) (finding an objective
expectation, firmly fixed in state law and official [Nebraska] Penal
Complex practice, that a prisoner would not be transferred [to a
mental hospital] unless he suffered from a mental disease or defect
that could not be adequately treated in the prison, giving rise to a

39

liberty interest entitled to due process protection) (citations omitted);
and
Olim v. Wakinekona, 461 U.S. 238, 249 (1983) (rejecting due process
challenge to prisoners transfer from Hawaii to California, concluding
that Hawaiis prison regulations place no substantive limitations on
official discretion and thus create no liberty interest entitled to
protection under the Due Process Clause.).
The endeavor that began in Greenholtz culminated in Hewitt v. Helms, 459
U.S. 460 (1983), where the Court held that Pennsylvania law created a liberty
interest in prisoners who were sent to segregative confinement, in light of the
unmistakably mandatory character of language in Pennsylvanias prison policies.
Id. at 471. The Court rejected the prisoners challenge, nonetheless, finding that
Pennsylvanias procedures met the requirements of due process under the familiar
balancing test set forth in Mathews v. Eldridge, 424 U.S. 319, 335 (1976). Hewitt,
479 U.S. at 472-74.
3. Sandin establishes a second barrier to State-law liberty
claims: the condition must impose atypical and significant
hardship compared to the relevant prisoner baseline.
The Court granted certiorari in Sandin to reexamine the circumstances
under which state prison regulations afford inmates a liberty interest protected by
the Due Process Clause. 515 U.S. at 474. The Court concluded that its approach
in Hewittclosely scrutinizing State regulations to find State-created liberty
interestscreated perverse incentives that unduly favored prisoners and
improperly interfered with State-prison management:

40

Hewitt has produced at least two undesirable effects.
First, it creates disincentives for States to codify prison
management procedures in the interest of uniform
treatment . . . . States may avoid creation of liberty
interests by having scarcely any regulations, or by
conferring standardless discretion on correctional
personnel.
Second, the Hewitt approach has led to the involvement
of federal courts in the day-to-day management of
prisons, often squandering judicial resources with little
offsetting benefit to anyone. 515 U.S. at 482.
The Court observed that the common subject of prisoner claims since Hewitt had
included inmates: demanding participation in boot camp; objecting to limits on
prison furloughs; demanding a tray lunch rather than a sack lunch; insisting on
a paperback dictionary; complaining about transfer to a smaller cell without
electrical outlets for televisions; and avoiding having to eat food loaf. Id. at
483. Allowing prisoners to scour for such liberty interests in State-prison
regulations ran counter to the view expressed in several of our cases that federal
courts ought to afford appropriate deference and flexibility to state officials trying
to manage a volatile environment. Id. at 482.
To remedy that problem, Sandin established a second barrier to prisoners
who claim that State law gives them a protectable liberty interest; courts must
determine if the claimed interest involves a freedom from restraint which, while
not exceeding the sentence in such an unexpected manner as to give rise to

41

protection by the Due Process Clause of its own force, nonetheless imposes
atypical and significant hardship on the inmate in relation to the ordinary incidents
of prison life. Id. at 484 (citations omitted).
Applying that atypical-and-significant-hardship test in Sandin, the Court
rejected the inmates claim that he had a liberty interest under Hawaii law in not
being sent to disciplinary segregation for a 30-day period. That claim failed
because discipline in segregated confinement did not present the type of atypical,
significant deprivation in which a State might conceivably create a liberty
interest. Id. at 486. Such disciplinary segregation, with insignificant exceptions,
mirrored those conditions imposed upon inmates in administrative segregation and
protective custody. Id.
Turning to the State-law issue, the Court found that Hawaii law did not
create a liberty interest in avoiding disciplinary segregation. Id. at 486-87. The
Court held, therefore, that neither the Hawaii prison regulation in question, nor
the Due Process Clause itself, afforded Conner a protected liberty interest that
would entitle him to the procedural protections set forth in Wolff. Id. at 487.
4. The Supreme Court has not yet instructed lower courts how
to determine the relevant baseline for deciding when a
prisoner is exposed to atypical hardship.
Sandin, unfortunately, did not tell lower courts how to select the relevant
baseline for determining whether conditions of confinement pose atypical and

42

significant hardship. Wilkinson v. Austin acknowledged that omission, noting
that, in Sandins wake[,] the Courts of Appeals have not reached consistent
conclusions for identifying the baseline from which to measure what is atypical
and significant in any particular prison system. 545 U.S. 209, 223 (2005). The
Court noted that the divergence of approaches in lower courts indicates the
difficulty of locating the appropriate baseline . . . . Id.
But the Wilkinson Court concluded that it did not need to resolve that
question. Assignment to Ohios Supermax facility qualified as an atypical and
significant hardship under any plausible baseline. Id. Imprisonment there
imposed solitary confinement for an indefinite period of time on general
population prisoners and disqualified them from being considered for parole under
Ohio law. Id. at 224. What is more, Ohio had conceded that prisoners assigned to
Supermax had a State-law liberty interest in avoiding that assignment.
8
The Court
went on to conclude, nonetheless, that Ohios procedures for determining

8
Ohio initially conceded that a State-law liberty interest existed, tried to withdraw
the concession, but conceded the point again at oral argument. Id. at 221.
Prisoners assigned to Supermax lost their eligibility for parole under Ohio law, id.
at 215, and Ohios policy on Supermax assignment gave prisoners extensive due
process rights before they were assigned to that facility, id. at 216-17. Those
considerations likely explained Ohios concession that a State-law liberty interest
arose under Ohio law.

43

assignment of general population prisoners to Supermax satisfied procedural due
process under Mathews. Id. at 224-29.
5. Lower courts have regularly applied Sandins twin barriers
to recognizing State-created liberty interests.
Lower courts have regularly applied Sandins two-barrier approach to
deciding if State law creates liberty interests that give rise to due process
protection. But they have differed as to whether a court must decide the atypical-
and-significant-hardship question before deciding whether State-law creates a
liberty interest with regard to the condition of confinement at issue.
The Second Circuit treats these inquiries independently, requiring prisoners
to satisfy both tests in order to prevail. As the Court put it in Frazier v.
Coughlin, 81 F.3d 313 (2d Cir. 1996):
[N]othing in Sandin suggests that a protected liberty
interest arises in the absence of a particular state
regulation or statute that (under Hewitt) would create
one. To prevail, [the prisoner] must establish both that
the confinement or restraint creates an atypical and
significant hardship under Sandin, and that the state has
granted its inmates, by regulation or by statute, a
protected liberty interest in remaining free from that
confinement or restraint. Id. at 317 (emphasis added;
footnote omitted).

44

See also Guilbert v. Sennet, 235 F. Appx 823, 826 (2d Cir. 2007) (following
Frazier); Brown v. McGinnis, No. 05-cv-758S, 2012 U.S. Dist. LEXIS 10847, at
*21 (W.D.N.Y. J an. 29, 2012) (same).
Other courts have described the analysis as a two-step inquiry, with the
atypical-and-significant-hardship question coming before the examination of State
law. A frequently cited case using the two-step approach is Puranda v. Johnson,
No. 3:08-cv-00687, 2009 U.S. Dist. LEXIS 93226 (E.D. Va. Sept. 30, 2009),
appeal dismissed, 367 F. Appx 453 (4th Cir. 2010) (per curiam):
[A]ssessing whether a state has created a liberty interest
with respect to inmates proceeds in two steps, as
described below. The first step seeks to assess whether
the deprivation holds sufficient significance to warrant
protection under the Fourteenth Amendment. The
second step evaluates whether the language of the
pertinent statute or regulation creates sufficient limits on
official discretion such that it could be deemed to create a
liberty interest. Id. at *8-9.
Representative cases following Puranda are collected in the footnote.
9

9
See e.g., Puranda v. Hill, No. 3:10-cv-733, 2012 U.S. Dist. LEXIS 84238, at *6-7
(E.D. Va. 2012) (Hudson, J .); Lee v. Gurney, No. 3:08-cv-99, 2010 U.S. Dist.
LEXIS 130493, at *21-22 (E.D. Va. Dec. 9, 2010) (Spencer, J .); Green v.
Venable, No. 3:09-cv-154, 2010 U.S. Dist. LEXIS 85928, at *11 (E.D. Va. Aug. 9,
2010) (Payne, J .).

45

B. Each of Sandins barriers independently requires judgment for
Virginia in this case.
Given the different approaches in Frazier and Puranda, this Court should
clarify that district courts are free to dismiss condition-of-confinement claims on
either (or both) of the two grounds. For when the prisoner cannot point to
anything in State law as having created the liberty interest he claims (as in this
case), it is unnecessary to consider whether the conditions of confinement involve
atypical or significant hardship, an issue that Wilkinson acknowledged can
cause difficulty, 545 U.S. at 223, and which consumed enormous discovery
resources in the district court below. In other analogous contexts, [the Supreme
Court has] appropriately declined to mandate the order of decision that the lower
courts must follow, leaving it to their sound discretion. Pearson v. Callahan,
555 U.S. 223, 241 (2009). This Court too has likewise found it wise to avoid the
large and difficult issues when a more straightforward solution is present.
Lolavar v. de Santibanes, 430 F.3d 221, 227 (4th Cir. 2005).
In other words, the Court should embrace the two-barrier approach in
Frazier over the two-step approach in Puranda. It should hold that district courts
may decide the case on either (or both) of Sandins two grounds.
That would have resulted in the dismissal of this case at the pleading stage,
when Prieto failed to identify any Virginia-law basis for his claim. Doing that
would have obviated the parties disagreement over the relevant baseline for

46

determining atypical conditions. And it would have avoided the numerous
depositions of Virginias corrections officials through whom Prieto attempted to
show that his conditions of confinement were more harsh than those in the general
prison population. Cf. Filarsky v. Delia, 132 S. Ct. 1657, 1665 (2012) (discussing
importance of qualified-immunity doctrine in avoiding distractions to public
officials who are required to give testimony in 1983 cases).
Notwithstanding that extensive discovery (J A 828), Prieto cannot satisfy
either of Sandins requirements.
1. Virginia law creates no reasonable expectation that capital
offenders will be housed anyplace other than death row.
Prietos claim fails under Wolff, Meachum, and Sandin because he cannot
point to any Virginia statute or regulation that creates any entitlement on the part
of death-row inmates to be considered for housing among the general prison
population. Instead, Operating Procedure 830.2(D)(7) unequivocally provides that
[a]ny offender sentenced to Death will be assigned directly to Death Row . . . .
(J A 196, 199, 221.) The Procedure further states that death-row inmates will not
be considered for reclassification to a different facility. (J A 199, 221, 227.19.)
And Operating Procedure 460.A(I) prohibits death-row offenders from being
housed with general population prisoners. (J A 941.) Prietos failure to identify
any State-law basis for his claimed liberty interest is dispositive.

47

2. Because death row is sui generis, the relevant baseline for
comparison is death-row housing, not general prisoner
housing.
If the Court chooses to reach it, Sandins atypical and significant hardship
inquiry also requires judgment for Virginias corrections officials because Prietos
conditions of confinement are not atypical or harsh when compared to those of the
relevant prison population: other death-row inmates.
As noted above, Sandin and Wilkinson left open the question of how to
decide the relevant baseline for determining that prison conditions are atypically
harsh. Both cases involved prisoners from the general prison population who were
assigned to segregative confinement.
The District Court overlooked the same point in concluding that it is clear
that the Fourth Circuit uses a facilitys general prison population as the relevant
baseline, see Beverati v. Smith, 120 F.3d 500, 504 (4th Cir. 1997). Prieto, 2013
U.S. Dist. LEXIS 161783, at *14 (J A 834). Beverati, like Sandin and Wilkinson,
involved general population inmates; the two inmates in Beverati were given six
months in administrative segregation after being caught with escape materials. 120
F.3d at 501-02. They claimed that such solitary confinement met Sandins
atypical and harsh conditions test because, among other things, their cells
were infested with vermin; were smeared with human feces and urine, and they
were forced to use their clothing and shampoo to clean the cells. Id. at 504. Even

48

accepting that version of events as true, the Court said that although the
conditions were more burdensome than those imposed on the general prison
population, they were not so atypical that exposure to them for six months imposed
a significant hardship in relation to the ordinary incidents of prison life. Id. In
fairness, there is nothing in Beverati that could be read as holding that death-row
inmates should be compared to prisoners in the general prison population.
It is common sense that the relevant baseline for evaluating Prietos claims
is the housing provided to other death-row inmates. Indeed, to our knowledge, no
court (other than the one below) has ever held that the Constitution requires death-
row inmates to be considered the same as general population prisoners with regard
to evaluating their conditions of confinement.
To the contrary, cases addressing that question treat death-row as sui
generis; the courts have uniformly rejected claims by death-row inmates that they
should be considered for housing with general population prisoners. A federal
district court in Pennsylvania recently dismissed a 1983 claim by a death-row
inmate whose sentence was commuted to life in prison, and who claimed that his
due process rights were violated when he was not considered for housing in the
general prison population pending his resentencing. Williams v. Wetzel, No. 12-
944, 2013 U.S. Dist. LEXIS 184000, at *12 (W.D. Pa. Dec. 9, 2013), adopted by
2014 U.S. Dist. LEXIS 7428 (W.D. Pa. J an. 22, 2014). The court said that

49

Plaintiffs due process claim fails because he did not have a liberty interest in
being housed in general population during the time he was waiting to be
resentenced. Id.
Other courts, including the Ohio district court after remand in Wilkinson,
have likewise concluded that the relevant baseline is other death-row inmates.
Austin v. Wilkinson, No. 4:01-cv-00071, 2008 U.S. Dist. LEXIS 24032, at *22
(N.D. Ohio Mar. 12, 2008) (the Court must compare the conditions on death row
at the [Ohio State Penitentiary] to the conditions on death row at other Ohio
prisons.); Lisle v. McDaniel, No. 3:10-cv-00064, 2012 U.S. Dist. LEXIS 170471,
at *11 (D. Nev. J uly 5, 2012) (The condition of being housed in the [Condemned
Mens Unit] is not atypical to other inmates on death row at [Ely State Prison];
therefore, plaintiff does not have a liberty interest.), adopted by 2012 U.S. Dist.
LEXIS 170467 (D. Nev. Nov. 30, 2012); Conway v. Wilkinson, No. 2:05-cv-820,
2005 U.S. Dist. LEXIS 31294, at *12-13 (S.D. Ohio Dec. 6, 2005) (denying
preliminary injunction that would have restricted transfer from one death-row
prison to another).
Similarly, in approving Floridas decision to exempt death-row prisoners
from its classification process that determined where to assign non-death-row
prisoners, the Court of Appeals said:
[W]hen a person in Florida is convicted of a capital crime
and sentenced to death, that person is transferred to a

50

prison and immediately placed in administrative
segregation. Because death row inmates are never placed
in the general population or given an expectation of being
placed in the general population, it appears that no liberty
interest is affected when they are placed in administrative
segregation. Parker v. Cook, 642 F.2d 865, 874 & n.7
(5th Cir. 1981) (emphasis added).
See also Apanovitch v. Wilkinson, 32 F. Appx 704, 706-07 (6th Cir. 2002)
(rejecting death-row inmates claim that conditions of confinement on death row
amount to punishment without due process of law, concluding plaintiffs have no
due process liberty interest in being confined in more hospitable surroundings);
Peterkin v. Jeffes, 855 F.2d 1021, 1023 (3rd Cir. 1988) (noting that lower court
dismissed the plaintiff-classs fourteenth amendment challenges to the decision by
the Bureau of Corrections to segregate death-sentenced prisoners); Smith v.
Coughlin, 748 F.2d 783, 787 (2nd Cir. 1984) (holding that prisoner sentenced to
death was not entitled to due process before being transferred to death row).
In short, the relevant baseline under Sandin to evaluate Prietos claim is
how other death-row prisoners are housed in Virginia. Because Prietos treatment
is not atypical or harsh as compared to them, his claim must fail.
C. Prieto ignored the requirement to ground the liberty interest in
State law.
Prieto simply ignored the requirement under cases like Wolff, Meachum, and
Sandin that any alleged State-law liberty interest be tethered to something in a

51

State statute or regulation. He focused instead on the atypicality inquiry alone,
chose the wrong baseline (comparing death-row inmates to general population
prisoners), and then jumped to the conclusion that the State-law foundation was
satisfied. But it is undisputed, as shown above, that Virginia law creates no liberty
interest here, even assuming for arguments sake that Prieto could get past
Sandins atypicality barrier.
Prieto suggested below that Sandin and Wilkinson somehow dispensed with
the requirement that the prisoners claimed liberty interest actually emanate from
State law. (ECF#75 at PageID#714-15.) He based that suggestion on
Wilkinsons statement that, [a]fter 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. 545 U.S. at 223 (quoting Sandin, 515 U.S. at
484)).
But that statement cannot be taken so far out of context. Prietos argument
cannot be squared with Sandins announcement that the Court wanted to return to
the due process principles we believe were correctly established and applied in
Wolff and Meachum. Id. at 483. See Puranda, 2009 U.S. Dist. LEXIS 93226, at
*10. Wolff found that Nebraska had created a protectable liberty interest while

52

Meachum found that Massachusetts had not. Prietos approach, by contrast, would
treat State law as entirely irrelevant, a proposition that could not be reconciled with
the Courts premise that liberty interests in such condition-of-confinement cases
are created by State law, not by the Constitution itself. See Sandin, 515 U.S. at
483-84 (Following Wolff, we recognize that States may under certain
circumstances create liberty interests which are protected by the Due Process
Clause.). And Prietos argument is further rebutted by Wilkinson itself, where the
Court made clear that, although a liberty interest in avoiding particular conditions
of confinement may arise from state policies or regulations, such a claim is
subject to the important limitations set forth in Sandin. 545 U.S. at 222
(emphasis added).
The Supreme Court decided Sandin to raise an additional barrier against
condition-of-confinement claims premised on State law; the Court did not open the
floodgates to such claims by dispensing with any inquiry at all into what State law
actually says.
D. Even if it were legally relevant to compare Virginias death row to
death row in other States, Virginias segregation of death-row
inmates is not unique.
The District Court, in denying Virginias motion to stay the injunction
pending appeal, said that Prietos counsel very articulately pointed out that the
majority of the states within the Fourth Circuit, in fact, do house their death row

53

inmates differently than does Virginia, and that plaintiffs are really not asking
for anything more. (J A 892-93.) There are several problems with that statement.
First, what other States do is legally irrelevant to whether Virginia law has
created a State-law liberty interest that gives rise to due process protection.
Second, the State-survey information that Prieto introduced into the record
(J A 859-90) actually undercuts the District Courts assessment. Within the Fourth
Circuit, neither North Carolina nor South Carolina houses death-row inmates with
the general prison population. (J A 863, 864, 872.) West Virginia abolished the
death penalty in 1965, so it has no death-row prisoners.
10
Maryland alone has
begun to house its remaining death-row inmates with general population prisoners
(J A 869, 877, 885), and Maryland ended the death penalty in 2013 for crimes
committed thereafter.
11

Marylands approach is unusual even outside of the Fourth Circuit. The
survey Prieto submitted reflects only one other State Missourithat has begun
to house its capital offenders among general population prisoners. (J A 862.) What
is more, twelve States restrict death-row inmates to congregate activities with other

10
1965 W. Va. Acts ch. 40, codified at W. Va. Code Ann. 61-11-2 (2013).
11
2013 Md. Acts ch. 156.

54

death-row inmates only.
12
Twelve States permit no congregate activities at all by
death-row prisoners.
13
So Virginia is hardly alone in its approach to securing
death-row offenders.
Finally, the suggestion that Virginia should make its death-row policies
more like Marylands is precisely the sort of judicial overreaching that the
Supreme Court and this Circuit have repeatedly condemned. See Argument I,
supra at 31.
III. The District Court improperly second-guessed the professional
judgment of Virginias prison officials that death-row offenders are too
dangerous to house in the general prison population.
The district judge was candid that she saw no relevant difference between
offenders sentenced to death and offenders sentenced to life in prison without
parole:
[I]t does appear as though this line that youve drawn
between capitalthose convicted of capital offenses who
have been sentenced to death and those who have been
sentenced to life imprisonment without the possibility for
parole, that there does not appear to be a truly rational
reason why you treat them differently. (J A 795.)
The court erred in that conclusion for two important reasons.

12
Alabama, Arizona, Arkansas, California, Florida, Kentucky, Nebraska, Nevada,
North Carolina, Ohio, Tennessee and Utah. (J A 867-74.)
13
Colorado, Connecticut, Delaware, Idaho, Louisiana, New Mexico, Oklahoma,
South Carolina, South Dakota, Texas, Washington, and Wyoming. (J A 867-74.)

55

First, a judge or jury had to make specific findings of fact, as a condition of
sentencing an offender to death, that it was probable that the offender would
commit criminal acts of violence that would constitute a continuing serious threat
to society, or that his offense was outrageously or wantonly vile, horrible or
inhuman in that it involved torture, depravity of mind or an aggravated battery to
the victim. Va. Code Ann. 19.2-264.2 (2009). The jury that gave Prieto two
death sentences for murdering Raver and Fulton unanimously found both
aggravating factors of future dangerousness and vileness . . . . Prieto II, 283 Va.
at 157, 721 S.E.2d at 489 (emphasis added). Such findings are not required of
offenders sentenced to life in prison without the possibility of parole.
Second, and perhaps more importantly, the district court gave no deference
at all to the extensive testimony by Virginias top prison officials about the
dangerousness of death-row inmates and the dangers of letting them congregate
with, let alone be housed with, general population prisoners. See Statement of
Facts, Parts A-C supra, at 8-16. Virginias death-row offenders include serial
killers and rapists like Prieto, who also has a prior conviction, by the way, for
escape. Prieto I, 278 Va. at 380, 682 S.E.2d at 916.
14
The District Courts opinion
does not even mention the mass escape in the 1980s by death-row offenders who

14
When Prietos counsel conducted his hypothetical scoring of Prietos security
level assignmentassuming that capital offenders were not categorically assigned
to death rowhe omitted Prietos prior conviction for escape. (J A 778.)

56

had been permitted to congregate with one another at the prison in Mecklenburg,
an incident that could have been catastrophic had they not been apprehended.
(J A 643.) See also, e.g., Conway, 2005 U.S. Dist. LEXIS 31294, at *12-13 (noting
greater security risk and greater flight risk of death-row inmates).
IV. The injunction is invalid because it violates Federal Rule 65 and the
Prison Litigation Reform Act.
The District Courts injunction (J A 850-51) represents the kind of [f]ederal
judicial micromanagement of state prison administration that this Court warned
about in Braun v. Maynard, 652 F.3d at 563. The injunction will require Virginia
to rewrite its prisoner classification system because, as currently formulated, it
does not contemplate housing capital offenders anywhere other than death row,
and it includes no point assignments to reflect the dangerousness of death-row
inmates. (J A 893.) And although the district court gave Virginia the option of
easing Prietos conditions of confinement so they were no longer atypical or
harsh, the court provided no guidance about how much softening was needed.
(J A 848, 850-51.) Prieto complained about everything from not being able to
adjust the temperature on the shower to the view from his prison cell. (See
Statement of Facts, Part E, supra at 20-26.)
The trial courts injunction thus falls short of the requirements of Federal
Rule 65(d). It does not state its terms specifically and does not describe in
detail . . . the act or acts restrained or required. Fed. R. Civ. P. 65(d)(1)(B), (C).

57

What is more, the injunction runs afoul of the Prison Litigation Reform Act
(PLRA), which provides that [p]rospective relief in any civil action with respect
to prison conditions shall extend no further than necessary to correct the violation
of the Federal right of a particular plaintiff or plaintiffs. 18 U.S.C.
3626(a)(1)(A). The injunction violates State or local law by specifically
overriding the Virginia Department of Corrections Operating Procedure
830.2(D)(7) (J A 221), and Operating Procedure 460.A(I) (J A 941), without
satisfying the requirements of 18 U.S.C. 3626(a)(1)(B). That subsection requires
separate, express findings that: (i) Federal law requires such relief to be ordered in
violation of State or local law; (ii) the relief is necessary to correct the violation of
a Federal right; and (iii) no other relief will correct the violation of the Federal
right. Id. 3626(a)(1)(B). The injunction is void for the same reason because it
contains no finding by the court that the relief is narrowly drawn, extends no
further than necessary to correct the violation of the Federal right, and is the least
intrusive means necessary to correct the violation of the Federal right. Id.
3626(b)(2).
In fairness to the District Court, the Commonwealth did not raise these
specific PLRA objections below; but compliance with the PLRA cannot thereby be
waived. Cagle v. Hutto, 177 F.3d 253, 257 (4th Cir. 1999). Cagle held that the
PLRA prevents a State from waiving its right to terminate a conditions-of-

58

confinement order, including even a consent decree, if the order violates the
PLRA. The Court explained that a waiver argument is inappropriate because it
would disregard[] the fundamental purpose of the PLRA, which was to remove
the federal district courts from the business of supervising the day-to-day operation
of state prisons. Id.
V. The Court should also vacate the award of attorneys fees and costs.
Because the District Courts judgment and injunction cannot stand, this
Court should also vacate the award to Prieto of attorneys fees and costs that
totaled $165,396. (J A 858).
CONCLUSION
The District Courts ruling is unprecedented. It would do away with death
row as it is currently operated in Virginia and numerous other States, requiring
death-row offenders to be housed in the general prison population under an
individualized placement policy, a sort of IEP
15
for capital offenders. The decision
is monumentally wrong and intrudes into the core professional judgment of State
corrections officials.

15
E.g,. Schaffer v. Weast, 554 F.3d 470, 477 (4th Cir. 2009) (describing
requirements of Individuals with Disabilities in Education Act for public school
systems to provide disabled children with an individualized education program,
or IEP, that is reasonably calculated to enable the child to receive educational
benefits.).

59

The District Courts judgment, attorneys fee award, and injunction should
all be vacated, and Prietos complaint should be dismissed.
Respectfully submitted,

HAROLD C. CLARKE, Director
A. DAVID ROBINSON, Deputy Director
E. PEARSON, Warden

By: /s/
Stuart A. Raphael (VSB #30380)
Solicitor General of Virginia
900 East Main Street
Richmond, Virginia 23219
(804) 786-7240 Telephone
(804) 371-0200 Facsimile
sraphael@oag.state.va.us

Mark R. Herring
Attorney General of Virginia

Cynthia E. Hudson
Chief Deputy Attorney General

Trevor S. Cox (VSB #78396)
Deputy Solicitor General
E-mail: tcox@oag.state.va.us

Linda L. Bryant (VSB #35010)
Deputy Attorney General,
Public Safety & Enforcement

Richard C. Vorhis (VSB #23170)
Senior Assistant Attorney General
rvorhis@oag.state.va.us

Kate E. Dwyre (VSB #82065)
Assistant Attorney General
kdwyre@oag.state.va.us

60

STATEMENT REGARDING ORAL ARGUMENET
This case involves an injunction that will force Virginia to completely revise
its policies regarding the housing of death-row inmates. The case also raises
important questions about the extent to which federal district courts may override
the professional judgment of State corrections officials regarding the safest way to
house death-row inmates pending imposition of their death sentences. Oral
argument is, therefore, warranted under Local Rule 34(a).

CERTIFICATE OF COMPLIANCE
I certify that this brief complies with the requirements of Fed. R. App. P.
32(a)(5) and (6) because it has been prepared in 14-point Times New Roman, a
proportionally spaced font, and that it complies with the type-volume limitation of
Fed. R. App. P. 32(a)(7)(B), because it contains 13,387 words, excluding the parts
exempted by Rule 32(a)(7)(B)(iii), according to the count of Microsoft Word.
/s/
Stuart A. Raphael

I hereby certify that on March 24, 2014, I electronically filed the foregoing
brief with the Clerk of this Court by using the appellate CM/ECF system. The
participants in the case are registered CM/ECF users and service will be
accomplished by the appellate CM/ECF system.
/s/
Stuart A. Raphael


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s/Kate E. Dwyre 12/30/2013

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Nos.

Appeal: 13-8021 Doc: 22 Filed: 03/24/2014 Pg: 2 of 77

s/Kate E. Dwyre 12/30/2013

Appeal: 13-8021 Doc: 22 Filed: 03/24/2014 Pg: 4 of 77

s/Kate E. Dwyre 12/30/2013

Appeal: 13-8021 Doc: 22 Filed: 03/24/2014 Pg: 6 of 77

s/Kate E. Dwyre 12/30/2013

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Prieto - State's Brief

Prieto - State's Brief