Prieto v. Clarke
| Decision Date | 10 March 2015 |
| Docket Number | Nos. 13–8021,14–6226.,s. 13–8021 |
| Citation | 780 F.3d 245 |
| Parties | Alfredo PRIETO, Plaintiff–Appellee, v. Harold CLARKE, Director; A. David Robinson, Deputy Director; E. Pearson, Warden, Defendants–Appellants. Toni V. Bair; F. Warren Benton; Kathleen M. Dennehy; Brian Jason Fischer; Martin F. Horn; Steve J. Martin; Chase Riveland; Reginald A. Wilkinson; Jeanne Woodford, Amici Supporting Appellee. Alfredo Prieto, Plaintiff–Appellee, v. Harold Clarke, Director; A. David Robinson, Deputy Director; E. Pearson, Warden, Defendants–Appellants. Toni V. Bair; F. Warren Benton; Kathleen M. Dennehy; Brian Jason Fischer; Martin F. Horn; Steve J. Martin; Chase Riveland; Reginald A. Wilkinson; Jeanne Woodford, Amici Supporting Appellee. |
| Court | U.S. Court of Appeals — Fourth Circuit |
OPINION TEXT STARTS HERE
ARGUED:Stuart Alan Raphael, Office of the Attorney General of Virginia, Richmond, Virginia, for Appellants. Michael E. Bern, Latham & Watkins LLP, Washington, D.C., for Appellee. ON BRIEF:Mark R. Herring, Attorney General of Virginia, Cynthia E. Hudson, Chief Deputy Attorney General, Linda L. Bryant, Deputy Attorney General, Public Safety & Enforcement, Richard C. Vorhis, Senior Assistant Attorney General, Kate E. Dwyre, Assistant Attorney General, Trevor S. Cox, Deputy Solicitor General, Office of the Attorney General of Virginia, Richmond, Virginia, for Appellants. Abid R. Qureshi, Katherine M. Gigliotti, Daniel I. Levy, Latham & Watkins LLP, Washington, D.C., for Appellee. Rebecca K. Glenberg, Hope R. Amezquita, American Civil Liberties Union Foundation of Virginia, Richmond, Virginia; Amy Fettig, Helen Vera, American Civil Liberties Union National Prison Project, Washington, D.C., for Amici Curiae.
Before MOTZ, SHEDD, and WYNN, Circuit Judges.
Reversed by published opinion. Judge Motz wrote the majority opinion, in which Judge Shedd joined. Judge Wynn wrote a dissenting opinion.
The district court held that the procedural Due Process rights of a capital prisoner were violated by a state policy requiring his confinement, prior to execution, in a single cell with minimal visitation and recreation opportunities. The court ordered state officials either to alter the policy or to improve these conditions. The officials appeal and, for the reasons that follow, we reverse.
Upon conviction for two capital murders and receipt of two death sentences, Alfredo Prieto was incarcerated by the Commonwealth of Virginia at Sussex I State Prison in Waverly, Virginia. Prieto is one of eight Virginia convicts imprisoned after receipt of the death penalty. All eight capital offenders are housed in the same portion of Sussex I, known widely as Virginia's “death row.” Appellant's Br. 11–13.
A written state policy mandates that all persons sentenced to death in Virginia be confined on death row while awaiting execution. See Virginia Dep't. of Corr. Operating Procedure 830.2(D)(7), 460.1A(I). Unlike other prisoners, these prisoners are not subject to security classification or assignment to any alternative confinement. Id. Inmates on death row live in separate single cells, with visitation and recreation restrictions more onerous than those imposed on other inmates.
After incarceration on Virginia's death row for nearly six years as he pursued post-conviction challenges, Prieto brought this 42 U.S.C. § 1983 action pro se. He alleged that his confinement on death row violated his procedural Due Process and Eighth Amendment rights and sought injunctive relief. The district court dismissed the Eighth Amendment claim but found that Prieto had stated a plausible Due Process claim and appointed counsel for him.1 Following discovery, the parties filed cross motions for summary judgment.
The district court granted Prieto's motion. The court noted that the conditions on Virginia's death row were “eerily reminiscent” of those held in Wilkinson v. Austin, 545 U.S. 209, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005), to implicate a liberty interest protected by the Due Process Clause. See Prieto v. Clarke, No. 12–1199, 2013 WL 6019215, at *6 (E.D.Va. Nov. 12, 2013). Reasoning that because these conditions were “uniquely severe” and pervasive compared to the conditions of the general prison population, the court concluded that Prieto had established a Due Process liberty interest in avoiding them and that Prieto's automatic and permanent assignment to death row did not afford him constitutionally adequate process. Id. at *7–8.
The district court then issued an injunction ordering Virginia prison officials either to “improve [Prieto]'s conditions of confinement” or provide Prieto with “an individualized classification determination” for his prison housing, like the classification procedure afforded by state law to non-capital offenders. Id. In a subsequent order, the court awarded Prieto all costs and attorney's fees. The prison officials appeal both orders; we consolidated the cases on appeal.
The Due Process Clause of the Fourteenth Amendment provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV. To state a procedural due process violation, a plaintiff must (1) identify a protected liberty or property interest and (2) demonstrate deprivation of that interest without due process of law. Because we conclude that Prieto cannot establish a protected liberty interest, we need not consider the sufficiency-of-process requirement.
The Supreme Court has long recognized that a prisoner may have a state-created liberty interest in certain prison confinement conditions, entitling him to procedural Due Process protections. See, e.g., Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976); Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974).2 But the Court has been equally clear that if no state statute, regulation, or policy creates such a liberty interest, a prisoner cannot “invoke the procedural protections of the Due Process Clause.” Meachum, 427 U.S. at 224, 96 S.Ct. 2532. And the Court has expressly “reject[ed] ... the notion that any grievous loss visited upon a person by the State is sufficient” to require constitutionally adequate procedure. Id.
In the late 70s and early 80s the Court broadly defined state-created interests, holding that any mandatory state directive created a state law liberty interest triggering procedural Due Process protections. See, e.g., Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983); Greenholtz v. Inmates of Neb. Penal and Corr. Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). In an effort to eliminate the resultant “[p]arsing” of state statutes to find rights by “negative implication,” the Court corrected course in Sandin v. Conner, 515 U.S. 472, 481–82, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). There it added a second requirement for establishing a liberty interest warranting constitutionally adequate process. Sandin holds that, while a state statute or policy may “create liberty interests” giving rise to Due Process protection, this is so only if the denial of such an interest “imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Id. at 484, 115 S.Ct. 2293.
A decade later, in Wilkinson v. Austin, 545 U.S. 209, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005), the Court applied this “two-part analysis.” 3Wilkinson expressly reaffirmed that in determining if a prisoner has established a state-created liberty interest in certain conditions of confinement, the “threshold question” is whether such an interest “arise[s] from state policies or regulations.” Id. at 221–22, 125 S.Ct. 2384. The Court then reiterated that even if state policies could be read to create such an interest, to garner the protection of the Due Process Clause an inmate must also establish that “the nature of [the] conditions themselves, ‘in relation to the ordinary incidents of prison life,’ ” impose “an atypical and significant hardship.” Id. at 223, 125 S.Ct. 2384 (quoting Sandin, 515 U.S. at 484, 115 S.Ct. 2293).
When the Wilkinson Court applied this two-prong analysis, the parties agreed as to the first prong. That is, the State and the inmates agreed on the “threshold question,” that written Ohio prison classification regulations controlled the prison assignment, and so confinement conditions, of all inmates. Id. at 215–17, 221, 125 S.Ct. 2384. The Wilkinson Court thus focused on the second prong: whether these regulations created a “liberty interest in avoiding restrictive conditions of confinement.” Id. at 223, 125 S.Ct. 2384. Reiterating Sandin's teaching, Wilkinson noted that the “touchstone of th[is] inquiry ... is not the language of the regulations regarding those conditions,” but whether their application imposed “atypical and significant hardship ... in relation to the ordinary incidents of prison life.” Id. (quoting Sandin, 515 U.S. at 484, 115 S.Ct. 2293) (internal quotation marks omitted). Assignment to and confinement at the supermax was found to constitute an “atypical and significant hardship,” because all other prisons in which the inmates could have been housed under Ohio's classification regulations had markedly less-onerous confinement conditions. See id. at 223–24, 125 S.Ct. 2384. And, for this reason, the Court concluded that “under any plausible baseline,” the harsh conditions at the supermax “g[a]ve rise to a liberty interest in their avoidance.” Id. at 223–24, 125 S.Ct. 2384. 4
Prieto properly recognizes the importance of Sandin and Wilkinson to his challenge. But his analysis, which the district court adopted, rests on interrelated, critical misunderstandings of those cases. Prieto treats Sandin and Wilkinson as establishing a new regime in which atypical and harsh confinement conditions, in and of themselves, give rise to a protected liberty interest, regardless of whether any state law or policy creates the...
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