                             PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 14-6411


LUMUMBA K. INCUMAA, a/k/a Theodore Harrison, Jr.,

                Plaintiff - Appellant,

           v.

BRYAN P. STIRLING, Acting Director of the South Carolina
Department of Corrections,

                Defendant - Appellee.



Appeal from the United States District Court for the District of
South Carolina, at Beaufort.   David C. Norton, District Judge.
(9:12-cv-03493-DCN)


Argued:   March 24, 2015                   Decided:   July 1, 2015


Before MOTZ, KEENAN, and THACKER, Circuit Judges.


Affirmed in part, reversed in part, and remanded by published
opinion.   Judge Thacker wrote the opinion, in which Judge Motz
and Judge Keenan joined.


ARGUED: Emily K. Merki, GEORGETOWN UNIVERSITY LAW CENTER,
Washington, D.C., for Appellant.    Andrew Lindemann, DAVIDSON &
LINDEMANN, P.A., Columbia, South Carolina, for Appellee.       ON
BRIEF: Steven H. Goldblatt, Center Director, Ruthanne M.
Deutsch, Supervising Attorney, Lola A. Kingo, Supervising
Attorney,   Ryan   H.  Sellinger,   Student   Counsel,  Appellate
Litigation    Program,   GEORGETOWN    UNIVERSITY   LAW   CENTER,
Washington, D.C., for Appellant.
THACKER, Circuit Judge:
            Lumumba Kenyatta Incumaa (“Appellant”) is a member of

the Nation of Gods and Earths (“NOGE”), a group whose adherents

are also known as “Five Percenters.”                  In 1988, Appellant began

serving a sentence of life imprisonment without the possibility

of parole in a prison operated by the South Carolina Department

of Corrections (the “Department” or “Appellee”). 1                  Following his

participation in a 1995 prison riot with other Five Percenters,

he was placed in solitary confinement security detention.                      He

has remained in solitary confinement for 20 years, despite not

having committed a single disciplinary infraction during that

time.

            With this suit, Appellant challenges his confinement

on two grounds.           Appellant’s first cause of action arises under

the     Religious     Land    Use     and       Institutionalized   Persons   Act

(“RLUIPA”), 42 U.S.C. § 2000cc-1, which prohibits a state from

imposing a substantial burden on an inmate’s religious exercise

unless    it    proves      that    the     restriction    furthers    compelling

interests      by   the    least    restrictive      means.    In   this   regard,

Appellant argues that Department policy required him to renounce


      1 Appellant originally sued Department Director William
Robert Byars Jr. in his official capacity.        The current
Department Director, Bryan Stirling, replaced Byars as the
defendant. Because Stirling was sued in his official capacity,
we will refer to him and Appellee synonymously.




                                            2
his affiliation with the NOGE, which he alleges is a religion,

before        the     Department        will       release        him      from    solitary

confinement.           On    the    second     ground,       Appellant        claims    that

Appellee violated his right to procedural due process.

               The    district      court      granted       Appellee’s        motion   for

summary judgment.            We affirm the portion of the district court

order discarding Appellant’s RLUIPA claim, which, we agree, was

not sufficient to go before a jury.                        However, we reverse the

grant    of    summary       judgment    as    it       relates    to    Appellant’s    due

process       claim.           Appellant’s         20-year        period      of   solitary

confinement,         we     hold,   amounts        to     atypical      and    significant

hardship in relation to the general population and implicates a

liberty interest in avoiding security detention.                              Furthermore,

there    is    a     triable    dispute       as    to    whether       the   Department’s

process for determining which inmates are fit for release from

security detention meets the minimum requirements of procedural

due process.

                                              I.

                                              A.

         The Five Percenters and Appellant’s Violent History

               The NOGE is an “offshoot” of the Nation of Islam and

other religious groups “in the Islamic sphere” that “preach[] a




                                               3
message      of    black    empowerment.”         J.A.      91,    92. 2     The    Five

Percenters also have a history of violence in South Carolina

prisons. 3        As a result, the parties maintain differing views of

the   Five        Percenters.        Appellant       maintains     the     NOGE    is    a

religious group.           Although Appellee does not contest Appellant’s

claim that the NOGE meets the legal definition of a religion,

the Department’s regulations treat the Five Percenters like a

violent    gang.       Of    note,    at    times,    the   Five    Percenters      have

themselves denied that their organization is a religion.                                See

id.   at   131      (stating,   on    the    cover     of   “The    Five    Percenter”

newsletter, “WE ARE NOT A RELIGION” (emphasis in original)).

             In April 1995, a group of Five Percenters -- including

Appellant -- organized a prison riot.                  The assailants took three

Department employees hostage and held them for 11 hours during

an intense standoff with police. 4               Four law enforcement officers



      2Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.
      3In In re Long Term Administrative Segregation of Inmates
Designated as Five Percenters, we observed that a federal
intelligence summary concluded the Five Percenters were “a
radical Islamic sect/criminal group that is often boldly racist
in its views, prolific in its criminal activities, and operates
behind a facade of cultural and religious rhetoric.”     174 F.3d
464, 467 (4th Cir. 1999) (internal quotation marks omitted).
      4In Incumaa v. Ozmint, we noted that Appellant pleaded
guilty to “three counts of hostage-taking and two counts of
assault and battery with intent to kill in relation to his
involvement in the prison riot”; his conviction was vacated on
(Continued)

                                            4
were hospitalized.                 Following this violent uprising, on June 16,

1995,      Appellee          designated     the    Five      Percenters       as    a    Security

Threat Group (“STG”). 5

                                                  B.

                   Prison Regulation of STGs and their Members

                                                  1.

           Assignment of STG Members to Special Management Unit

                  When       the     Department’s       Special    Investigations               Unit

suspects that an inmate is a member of an STG, the unit conducts

a “rigorous investigation” to confirm the inmate’s association.

J.A.       126.         If     the    investigators       validate     the     inmate’s          STG

membership,              the       Department’s         Institutional         Classification

Committee          (“ICC”)         either   recommends        labeling     the       inmate      as

Validated-GP,             which       allows   him      to    reside     in        the    general

population,         or       designates     him    as    Validated-SD,        which       entails

placement          in     security       detention.          According        to     Department

Investigator Elbert Pearson,

                       If an individual has been validated as
                  an STG member, but has not committed or been
                  implicated in any disciplinary infractions



ineffective-assistance-of-counsel                      grounds.      507      F.3d       281,   283
n.1 (4th Cir. 2007).

       5
       The Five Percenters were implicated in at least 484
incidents “of violence and other disruptive conduct” within the
Department prison network from 2003 to 2013. J.A. 220, 222.




                                                  5
               or STG activities, that individual would
               typically, although not always, receive a
               classification of Validated-GP . . . .
                    If an individual has been validated as
               an    STG    member,    and    has    committed
               disciplinary    infractions    .   .   .    that
               individual    would    typically    receive    a
               classification of Validated-SD . . . .

Id. at 126-27.          Security detention, in contrast to disciplinary

detention, is not a punishment for disciplinary infractions but

is used to protect inmates and staff and to maintain prison

order.

               If the ICC classifies an STG inmate as Validated-SD,

it   then      determines     where    to    place     the     inmate       and    what

restrictions to impose upon him.               The Department maintains two

security detention units.          A Validated-SD inmate can be assigned

either    to     the    Special   Management    Unit       (“SMU”)   or     the    more

restrictive Maximum Security Unit, which houses inmates who have

engaged     in   violent    behavior    or   have     committed      serious      rules

infractions.           The ICC also determines the inmate’s “behavior

level,” which dictates the inmate’s restrictions and privileges

while in his respective unit.           J.A. 137.       “Inmates who have been

assigned         to      [s]ecurity      [d]etention          without         serving

[d]isciplinary         [d]etention”    are   designated       as    Level    II,    and

“inmates    charged      with . . . assault      on    a    staff    member       and/or




                                         6
inmate”          are    “automatically . . . assigned             to   Level     I.” 6     Id.

Level I inmates are held in the “strictest degree of custody and

control” available in their unit.                     Id. at 149.

                  Due    to    his   role   in       the   1995   riot,   Appellant        was

validated          as    a    Five   Percenter,       designated       Validated-SD,       and

placed in the Maximum Security Unit.                       His assignment to security

detention was not a punishment for participating in the riot but

was generally intended “to maintain and control the inmate and

to provide safety and security for the staff and other inmates.”

J.A. 284.          Appellant was transferred to the SMU in 2005, and he

has remained in the SMU as a Level II inmate since that time.

He is currently one of only two Five Percenters housed in the

SMU -- other validated Five Percenters are permitted to reside

in the general population and openly maintain their affiliation

with       the    group.        During   the     decades     Appellant     has     spent    in

security detention, he has not committed a single disciplinary

infraction.




       6Although the Department regulations only mention two
behavior levels, the ICC’s classification notices imply that a
Level III also exists. See Incumaa v. Ozmint, 507 F.3d at 283-
84 (discussing Level III classification).




                                                 7
                                  2.

           Conditions in SMU versus General Population

          Appellant   claims   the     SMU    is   substantially   more

restrictive than the general population.           The Department does

not contradict this account.   As an SMU inmate, Appellant is

     •    confined to his cell “24 hours a day on non-
          recreation and non-shower days”;

     •    permitted to leave his cell for recreation
          only one hour approximately ten times per
          month;

     •    allowed only a ten-minute shower three times
          per week;

     •    “stripped [sic] searched, made to lift and
          shake his genitalia, made to bend over,
          spread his buttocks in the direction of the
          officer so that he may look at [Appellant’s]
          anus, then made to squat and cough, and
          afterwards hand cuffed behind his back every
          time he leaves the cell, even to the shower
          where he is locked in a single occupancy
          shower stall”;

     •    served smaller portions of food than inmates
          in the general population receive;

     •    required to eat all meals in his cell;

     •    limited to property that can fit into a box
          that is 15 by 12 by 10 inches;

     •    “denied all canteen privileges”;

     •    denied     “education         and        vocational
          opportunities”; and

     •    “denied the opportunity to receive          mental
          health treatment for his diagnosed          mental
          health condition.”


                                  8
J.A. 23-24.

                                         3.

                             Review of SMU Detention

          Department regulations require the ICC to review each

SMU inmate’s candidacy for release every 30 days.                        According

Pearson, there are three bases on which the ICC may recommend

reclassification       and     release   from   the      SMU:    (1)   the   inmate

renounces affiliation with the STG; 7 (2) improvement in behavior

level; or (3) the Department Director removes the inmate’s group

from the STG list.

          To renounce his affiliation, the inmate “fills out a

detailed questionnaire about why he or she wants to renounce

membership” in the STG.            J.A. 127.       The ICC then reviews the

questionnaire    and     determines      whether   the    inmate’s     attempt    to

renounce STG affiliation is sincere.               Consequently, the ICC may

choose   to     reject       an   inmate’s      attempt     to     renounce      his

affiliation.     See Reply to Pl.’s Resp. to Defs.’ Mot. for Summ.

     7 Pearson diverges from the letter of the Department
regulations don this point to some extent.        The Department
regulations do not mention the renunciation policy; they only
state that “[i]nmates who have clear disciplinary records and
who comply with unit procedures, inmate grooming and sanitation
standards will be considered for . . . release from SMU.”    J.A.
138.   However, because we must interpret the evidence in the
light most favorable to Appellant -- and because Appellee
apparently concedes this point -- we will assume that the
renunciation policy is a feature of the Department regulations.




                                         9
Jud. at 2, Incumaa v. Byars, No. 9:12-cv-03493 (D.S.C. Dec. 12,

2012; filed Aug. 31, 2013), ECF No. 34 (“It is unclear whether

[the Department] would even allow the Plaintiff to renounce and

be reassigned to the general population given his involvement as

a ringleader in the 1995 riot . . . .”).

              With    regard     to     reclassifications         based    on     “behavior

level,” J.A. 138, Department regulations state:

              Inmates who have clear disciplinary
              records   and  who    comply   with  unit
              procedures . . . will be considered for
              advancement from Level I to Level II or
              release from SMU. . . .      The decision
              to     release     an     inmate     from
              SMU . . . will   be    based    upon  the
              inmate’s overall disciplinary record
              and compliance with all Agency policies
              and procedures while in SMU.

Id. at 138, 139.             The ICC has authority “to reduce or advance

the   inmate’s       Level      as    it     deems    appropriate.”        Id.     at   138.

Pursuant   to     Department          regulations,       after    each    30-day     review

period,    the       ICC   is        required    to    deliver     a     notice    of    its

classification decision to the inmate within 48 hours.                             However,

the regulations do not require the ICC to provide any factual

basis   for     its    decision         to    maintain    an     inmate    at     the   same

behavior level or to recommend against release from the SMU.

              The record contains copies of the ICC’s classification

notices to       Appellant,          and     these   notices     span    nine   months    --

February to November 2012 -- of his solitary confinement.                               Each



                                                10
notice is nearly identical to the next and simply states that

Appellant continues to be held in the SMU and “remain[s] Level

II.”        J.A. 95-103.        All provide the same perfunctory, five-

letter      justification       for    this    recommendation:        “STG-SD.”         Id.

The    ICC’s    required        30-day      reviews     are    also    documented       on

Department      records       labeled      Form     18-68,    also   known      as   “Staff

Memoranda.”        Id.     at       138.      The    record     contains     the     Staff

Memoranda documenting review of Appellant’s confinement in the

SMU every 30 days from May 2008 to May 2013. 8                        In total, there

are    64    entries     in     the    record.        All     but    one   of    them   is

accompanied by the same comment: “Warden’s review, 30 day ICC &

monthly visit.”        Id. at 156-58.              The single varying entry -- on

April 25, 2012 -- states that Appellant “remain[ed] in SMU” and

would “not renounce his affiliation” with the Five Percenters.

Id. at 158.      None of the entries provides a detailed explanation

of the basis for Appellant’s continued confinement.

              According        to     Department        regulations,         the     ICC’s

periodic release review is single-layered. 9                    The warden does not



       8
       Although prison officials claim that Appellant’s custody
has been reviewed every 30 days since his transfer to the SMU,
the Department did not produce the Staff Memoranda from, 2005 to
2007.
       9
       Although 30-day status reviews are entered as “Warden’s
Review” on the Staff Memoranda, it appears from the record that
the ICC conducts these evaluations on the warden’s behalf.
Where they discuss review for release from the SMU, the
(Continued)

                                              11
review      the   ICC’s   decision       regarding    confinement    unless   the

inmate “appeal[s] the decision of the ICC through the inmate

grievance system” or the ICC recommends release from security

detention, in which case “[t]he ICC must ensure the concurrence

of the Warden/Designee for the inmate’s release.” 10                  J.A. 137,

139.

              Appellant    filed     a    grievance     on   April   21,    2009,

alleging that the ICC “refus[ed] to consider [him] for a lower

security detention level until and unless [he] renounce[d] [his]

faith” -- which, he said, “impose[d] a substantial burden on

[his] ability to exercise [his] religion.”                   J.A. 12.      In the

section marked “action requested,” Appellant requested reform of




Department regulations emphasize the ICC’s role, not the
warden’s: “The decision to release an inmate from SMU can be
recommended by the ICC,” and “[t]he ICC . . . ha[s] the
authority to reduce or advance the inmate’s Level as it deems
appropriate based on the inmate’s behavior while housed in SMU.”
J.A. 138, 139.    Additionally, the regulations state that “the
Warden must review the status of all inmates in continuous
confinement for more than 30 days,” but direct staff to document
reviews on a form entitled “SCDC Form 19-30, SMU Institutional
Classification Committee Review.”       Id. at 138 (internal
quotation marks omitted).

       10
        While the Department regulations, read literally, only
permit inmates to appeal the ICC’s decision to place them in
security detention, Appellant was allowed to file a grievance
regarding the ICC’s decision that he remain in the SMU.
Therefore, for the purposes of this case we will interpret the
regulations as authorizing inmates already in the SMU to oppose
a classification review decision through the grievance system.




                                          12
the   STG    policy       “so   that     classifications      are   made       on   an

individual, not religious basis.”               Id.   Appellant also requested

“regular    and    periodic     evaluations      by   the   [ICC]   of   [his]      STG

classification.”          Id.        The warden responded that Appellant’s

requests     could    not       be     accommodated    because      “[t]he       issue

[Appellant] addressed is an issue against policy, which cannot

be changed” by the administrators of the prison because policy

changes     “are   made    at   the    institutional    level.”       Id.      at   13.

Accordingly, the warden denied Appellant’s grievance.                        Appellant

appealed the warden’s decision to the Department’s director, who

concurred with the warden because Appellant “ha[d] been informed

on what procedures [he] must follow to be considered for release

from the [SMU], to include renouncing [his] affiliation with

[the Five Percenters].”          Id. at 14.


                                          C.

                                Procedural History

             On    December     12,     2012,   Appellant     filed      a    pro   se

complaint pursuant to 42 U.S.C. § 1983.                 Appellant claimed that

the Department’s renunciation policy violated his rights under

RLUIPA.      Appellant also claimed that, throughout his detention

in the SMU, the Department violated his procedural due process

rights by failing to conduct meaningful review of whether he was

fit for release to the general population.                   Appellee moved for




                                          13
summary judgment on both of these claims.                           The district court

granted the motion.            Though the court assumed that the NOGE

constituted     a   religion         --    and       apparently          determined           that

Appellant’s     confinement      imposed         a    substantial         burden        on     his

beliefs -- it nonetheless concluded that the Department’s policy

was “the least restrictive means of furthering the government’s

compelling    interests”       and    therefore           did   not      violate        RLUIPA.

Incumaa v. Stirling, No. 9:12-cv-03493, 2014 WL 958679, at *7

(D.S.C. Mar. 11, 2014).              The court also held that Appellant’s

procedural rights were not violated because he failed to prove

that his circumstances of imprisonment “[rose] to the level of

an   atypical   and    substantial         hardship”         --     a    prerequisite           to

establishing    a   due    process        right      to    review       for   release         from

security   detention.          Id.   at    *10.           Appellant      filed      a    timely

appeal.

           Appellant argues that a reasonable juror may find that

Department policy places a substantial burden on his exercise of

religion     because      it    conditions           release      from        the       SMU    on

renouncing his NOGE faith.                He also argues that the district

court erred in concluding that the conditions he has experienced

for the last 20 years in solitary confinement do not constitute

atypical and significant hardship in relation to the ordinary

incidents of prison life.




                                           14
                                       II.

           “We     review   the     district     court’s      grant   of    summary

judgment de novo. . . .        As to those elements on which it bears

the burden of proof, a government is only entitled to summary

judgment   if    the    proffered     evidence   is    such    that   a    rational

factfinder      could   only   find    for     the    government”     and    it   is

entitled to judgment as a matter of law.                 Smith v. Ozmint, 578

F.3d 246, 250 (4th Cir. 2009).               To make this determination, we

review the entire record, evaluating the evidence in the light

most favorable to Appellant.            See Beverati v. Smith, 120 F.3d

500, 503 (4th Cir. 1997).

                                       III.

                                        A.

                                  RLUIPA Claim

           In relevant part, RLUIPA states:

           No government shall impose a substantial
           burden on the religious exercise of a person
           residing    in    or      confined     to     an
           institution . . . ,   even    if   the    burden
           results    from     a    rule    of     general
           applicability,    unless     the     government
           demonstrates that the imposition of the
           burden on that person--

                   (1) is in furtherance of a compelling
                   governmental interest; and
                   (2) is the least restrictive means of
                   furthering that compelling governmental
                   interest.




                                        15
42 U.S.C. § 2000cc-1(a). 11

              By enacting RLUIPA, Congress afforded prisoners free-

exercise rights similar to those enjoyed by the free population.

See Cutter v. Wilkinson, 544 U.S. 709, 715-17 (2005).                                 RLUIPA

prescribes     a     shifting         burden    of    proof   for       inmate     religious

exercise      claims.           The    inmate       bears   the    initial        burden    to

demonstrate that the prison’s policy exacts a substantial burden

on religious exercise.                 If the inmate clears this hurdle, the

burden shifts to the government to prove its policy furthers a

compelling governmental interest by the least restrictive means.

See 42 U.S.C. § 2000cc-2(b).

              A prison regulation may impose a “substantial burden”

by forcing “a person to ‘choose between following the precepts

of her religion and forfeiting [governmental] benefits, on the

one    hand,       and     abandoning          one    of    the        precepts      of    her

religion . . . on the other hand.’”                     Lovelace v. Lee, 472 F.3d

174,    187   (4th       Cir.   2006)       (alterations      in       original)     (quoting

Sherbert v. Verner, 374 U.S. 398, 404 (1963)).                            In other words,

the    regulation        places       the   person    between      a    rock   and    a    hard

place.



       11
        As a “governmental entity created under the authority of
a State,” the Department “fit[s] within [the] definition” of
“government.”   Smith v. Ozmint, 578 F.3d 246, 250 (4th Cir.
2009).




                                               16
              For example, in Couch v. Jabe, an inmate claimed that

his religious beliefs required him to grow a one-inch beard.

679 F.3d 197, 199 (4th Cir. 2012).                 Prison policy forbade facial

hair   and    the     prison    “limit[ed]     or     t[ook]     away    governmental

benefits” to enforce the beard ban.                  Id. at 200.        If the inmate

cut his beard, the prison reinstated the benefits.                       We held that

this practice “fit squarely within the accepted definition of

substantial     burden”        because   it   forced       the   inmate    to   choose

between      following    the     edicts      of     his    religion      and   losing

privileges.      Id. (internal quotation marks omitted).

              The Supreme Court recently held the same.                   In Holt v.

Hobbs, a prisoner faced “serious disciplinary action” if he grew

a beard as dictated by his religion.                 135 S.Ct. 853, 862 (2015).

The Court concluded that “put[ting] petitioner to [the] choice”

between      punishment    and     violating       his     beliefs   “substantially

burden[ed] his religious exercise.”                Id.

              Here,    Appellant     argues        that    the   Department     policy

similarly imposes a substantial burden on his religious exercise

because it “forces [him] to choose between continued adherence

to his religion in solitary confinement, on one hand, and the

far more favorable living conditions of the general population,




                                         17
on the other.”         Appellant’s Br. 49. 12            For purposes of this case,

we    assume    without       deciding       that    the    Five      Percenters       are   a

religious      group       entitled     to    protection.        This       argument    fails

because the Department Policy forces no such choice upon him.

Indeed, according to Pearson, renunciation is only one of three

avenues for securing release from the SMU, and Department Policy

does not guarantee release even if a Validated-SD inmate does

renounce.            See     J.A.     127.          Moreover,         Appellant       himself

acknowledges that other Five Percenters are permitted to reside

in the general population and openly maintain their affiliation.

Appellant’s argument that the Department’s singular goal is to

make him renounce his religion is further undermined by the fact

that    Department         officials     permit      Appellant         to    possess    NOGE

materials while in the SMU but ban these items in the general

population.

               Appellant       notes     that       he     has    not       committed     any

disciplinary infractions since the 1995 riot and points us to

one    entry    in    the    Staff     Memoranda       where     an    SMU    staff    member

mentioned       that        Appellant        refused       to    renounce        his     NOGE

affiliation.          He argues that this evidence demonstrates that

       12
        Appellant mentions in passing that SMU regulations also
prevent him from celebrating “Honor Days,” the NOGE’s highest
holidays, but the only substantial burden he argues in his brief
relates to the Department renunciation policy.   Appellant’s Br.
48.




                                              18
renunciation must be a prerequisite to returning to the general

population.       Although   “administrative            segregation      may    not   be

used as a pretext for indefinite confinement,” on this record it

would be unreasonable to conclude that the ICC has no plausible

reason   other    than   Appellant’s       refusal       to    renounce      his   NOGE

affiliation   for    continuing      to    view    Appellant        as   a   threat   to

prison staff and other inmates.                Hewitt v. Helms, 459 U.S. 460,

477 n.9 (1983); see also Cutter, 544 U.S. at 717 (noting that

Congress   “anticipated . . . that             courts       would   apply      [RLUIPA]

with due deference to the experience and expertise of prison and

jail administrators” (internal quotation marks omitted)).

           In sum, no reasonable factfinder could conclude that

Appellant’s      renunciation   of    his       faith    is    a    prerequisite      to

returning to the general population.                    Appellant has failed to

demonstrate that the Department’s policy imposes a substantial

burden on his religion.         Therefore, we conclude that Appellee

must prevail on the RLUIPA claim as a matter of law.

                                          B.

                             Due Process Claim

           Appellant also presses a procedural due process claim.

Our analysis of this claim entails a two-step process.                           First,

we   determine     whether   Appellant          had     a     protectable      liberty

interest in avoiding security detention.                    See Burnette v. Fahey,

687 F.3d 171, 180 (4th Cir. 2012).                    Second, we then evaluate


                                          19
whether    the     Department           failed    to    afford         Appellant      minimally

adequate process to protect that liberty interest.                                   See id. at

181.     For the reasons that follow, we conclude Appellee cannot

prevail    on     either      of   these        sub-issues        as    a    matter       of   law.

Therefore,       we    reverse     the     district         court’s      order       of    summary

judgment as to Appellant’s procedural due process claim.

                                                1.

                                    Liberty Interest

            Although          “[l]awful         incarceration           brings       about     the

necessary        withdrawal        or     limitation        of     many       privileges        and

rights,”     a     prisoner’s           right    to    liberty         does     not       entirely

disappear.        Price v. Johnson, 334 U.S. 266, 285 (1948); see also

In re Long Term Admin. Segregation of Inmates Designated as Five

Percenters,       174    F.3d      464,    468       (4th   Cir.       1999).         “[F]ederal

courts must take cognizance of the valid constitutional claims

of prison inmates.”              Turner v. Safley, 482 U.S. 78, 84 (1987).

In Sandin v. Conner, the Supreme Court declared that prisoners

have a liberty interest in avoiding confinement conditions that

impose    “atypical        and     significant         hardship         on    the     inmate     in

relation to the ordinary incidents of prison life.”                                       515 U.S.

472, 484 (1995).           The Court reaffirmed the Sandin standard in

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

            Recently, in Prieto v. Clarke, we held that Sandin,

Wilkinson,       and    our     precedent        “do[]      not    hold       that     harsh     or


                                                20
atypical      prison    conditions       in    and    of    themselves         provide    the

basis    of      a   liberty     interest          giving    rise     to       Due   Process

protection.”          Prieto v. Clarke, 780 F.3d 245, 249 (4th Cir.

2015).     Rather, inmates must first establish that an interest in

avoiding onerous or restrictive confinement conditions “arise[s]

from     state       policies    or    regulations”           (e.g.,       a     regulation

mandating      periodic       review).         Id.    (internal        quotation       marks

omitted).        Because there is uncontroverted evidence that the

Department policy here mandates review of Appellant’s security

detention     every     30    days,   we      have   no     trouble    concluding        that

Appellant has met the first prong of his burden under Sandin and

its progeny.         The predominant question in this case, rather, is

whether Appellant established that the conditions he experienced

during his two decades in solitary confinement present atypical

and significant hardship in relation to the ordinary incidents

of prison life.

              Whether        confinement       conditions        are       atypical       and

substantially harsh “in relation to the ordinary incidents of

prison life” is a “necessarily . . . fact specific” comparative

exercise.        Beverati v. Smith, 120 F.3d 500, 502, 503 (4th Cir.

1997); accord Ramirez v. Galaza, 334 F.3d 850, 861 (9th Cir.

2003) (“There is no single standard for determining whether a

prison hardship is atypical and significant, and the condition

or combination of conditions or factors . . . requires case by


                                              21
case,    fact    by     fact    consideration.”         (alteration    in   original)

(internal quotation marks omitted)).                    In Prieto, we recognized

that the Sandin standard contains two parts.                        Cf. Prieto, 780

F.3d     at   253-54.          First,    we     determine    what     the   normative

“baseline”       is:    what     constitutes      the    “ordinary     incidents        of

prison life” for this particular inmate?                    Id. at 253 (“What the

inmates in Beverati could expect to experience and what Prieto

can     expect    to     experience      differ     significantly. . . .               For

conditions dictated by a prisoner’s conviction and sentence are

the conditions constituting the ‘ordinary incidents of prison

life’     for     that       prisoner.”).          Then,     with     the    baseline

established, we determine whether the prison conditions impose

atypical and substantial hardship in relation to that norm.                            See

id. at 254 (holding that Prieto’s death row confinement did not

impose    atypical       and    significant      hardship    in   relation        to   the

ordinary incidents of prison life).

                                           a.

                       Normative Baseline for Atypicality

              Although some of our sister circuits read our decision

in Beverati to imply that the typical conditions in the general

prison population provide the comparative baseline, see, e.g.,

Wilkerson v. Goodwin, 774 F.3d 845, 854 (5th Cir. 2014), Prieto

held that the general prison population is not always the basis

for    comparison       --     the   “baseline    for    atypicality”       may    shift


                                           22
depending on the “prisoner’s conviction and sentence.”                      Prieto,

780 F.3d at 253.         Nonetheless, for the reasons explained below,

we   conclude    that    the   general   population      is    the    baseline    for

atypicality for inmates who are sentenced to confinement in the

general prison population and have been transferred to security

detention while serving their sentence.

              In Beverati, the general population was the baseline.

There, inmates sentenced to the Maryland Penitentiary’s general

population       were     administratively          segregated       in    solitary

confinement because they possessed escape paraphernalia. 13                       The

inmates complained that Maryland prison officials deprived them

of procedural due process.          To determine whether “the conditions

the prisoner[s] maintain[ed] [gave] rise to a liberty interest,”

we compared the inmates’ living conditions to “those incident to

normal      prison   life.”     Beverati,     120    F.3d     at    503.    Because

“applicable prison regulations indicate[d] that the conditions

in administrative segregation [we]re similar in most respects to

those      experienced   by    inmates   in   the    general       population,”    we

concluded that the inmates did not possess a liberty interest in

avoiding administrative segregation.            Id.



      13One of the Beverati inmates was originally placed in
disciplinary detention, but he was transferred to administrative
segregation after serving his disciplinary sentence.     See 120
F.3d at 501-02.




                                         23
            But     in    Prieto,       we    held        that     using      the   general

population to gauge the ordinary incidents of prison life for a

death row inmate was improper.                See 780 F.3d at 252-54.                 There,

a Virginia inmate on death row claimed a liberty interest in

avoiding      the   “undeniably         severe”       conditions         of    death    row

confinement.        Id. at 252, 254.              The district court interpreted

Beverati to convey that “the Fourth Circuit uses a facility’s

‘general prison population’ as the relevant baseline.”                                Prieto

v. Clarke, No. 1:12-cv-1199, 2013 WL 6019215, at *1 (E.D. Va.

Nov. 12, 2013) (internal quotation marks omitted), rev’d, 780

F.3d 245 (4th Cir. 2015).                 The court determined that housing

conditions on death row were atypical and significantly harsh

compared to the general population and, therefore, gave rise to

a   liberty    interest.          We    reversed.              Because     “Virginia     law

mandate[d]      that     all     persons          convicted       of     capital      crimes

are . . . automatically confined to death row,” Prieto, 780 F.3d

at 254, housing on death row was “normal prison life,” Beverati,

120 F.3d at 503.              Therefore, Prieto was unable to assert a

liberty    interest      in    avoiding      confinement         to    death   row.      See

Prieto, 780 F.3d at 253.

            The     “conditions        dictated      by    a     prisoner’s     conviction

and sentence,” we stated, “are the conditions constituting the

‘ordinary incidents of prison life’ for that prisoner.”                             Prieto,

780 F.3d at 254 (emphasis supplied) (quoting Sandin, 515 U.S. at


                                             24
484); accord Rezaq v. Nalley, 677 F.3d 1001, 1013 (10th Cir.

2012)    (“The     ordinary         incidents      of    prison             life    will     differ

depending on a particular inmate’s conviction . . . .” (internal

quotation     marks       omitted)).             Although             the    “nature       of    a[n

inmate’s] conviction” and the “length of [his] sentence” do not

“give rise to different liberty interests,” “state law mandates

[regarding]       the     confinement         conditions               to     be     imposed     on

offenders convicted of a certain crime and receiving a certain

sentence . . . are,            by   definition,         the       ordinary         incidents     of

prison   life     for     such      offenders.”          Prieto,            780     F.3d    at   254

(internal     quotation         marks      omitted).              A    death       row     inmate’s

confinement       conditions          must       fall      within             the        “‘expected

perimeters’” of his death row sentence.                           Id. (emphasis omitted)

(quoting     Sandin,      515       U.S.    at     485).              Likewise,       a     general

population    inmate’s         confinement         expectations             radiate       from   the

conditions       that    inmates      in     the    general            population          normally

experience.       See id. at 253-54 (“What the inmates in Beverati

could    expect     to    experience         and    what          Prieto      can     expect     to

experience differ significantly.                   It should come as no surprise

that the baseline does, too.”).

             Although      the      general       prison      population             is    not   the

relevant atypicality baseline in all cases, it is the touchstone

in   cases   where       the    inmate     asserting          a       liberty       interest     was

sentenced to confinement in the general population and later


                                             25
transferred to security detention. 14                See Prieto, 780 F.3d at

252.        This view comports with Supreme Court opinions as well as

our precedent.         See Wilkinson, 545 U.S. at 223 (“Sandin found no

liberty       interest   protecting        against   a   30-day   assignment    to

segregated confinement because it did not present a dramatic

departure from the basic conditions of the [inmate’s sentence].”

(alteration       in   original)       (internal   quotation   marks   omitted));

Prieto, 780 F.3d at 254 (“Prieto, like any other inmate, can

only be deprived of that to which he is entitled.” (emphasis in

original)); Beverati, 120 F.3d at 501, 503; Gaston v. Taylor,

946    F.2d     340,   343    (4th.    1991)    (“[P]unishment    or   confinement

beyond that contemplated by the original sentence imposed can be

imposed only with procedures satisfying due process.”).

               Because       it   is    uncontroverted    that    Appellant    was

sentenced to the general population, the general population is

the basis for our comparison here.




       14
        We previously took this approach in Walsh v. Corcoran,
No. 98-7853, 2000 WL 328019, at *7 (4th Cir. Mar. 29, 2000)
(unpublished)   (“[I]n    Beverati,   our    determination   that
administrative segregation did not present an atypical or
significant hardship involved using the incidents of prison life
that flowed from the inmates’ original sentences as a baseline
for comparison with conditions in administrative segregation.”).




                                           26
                                             b.

                         Atypical and Significant Hardship

            Having          identified      the     general        population   as   the

atypicality baseline, we turn to whether Appellant has met his

burden    of     proof.        Appellant         must     demonstrate     his   solitary

confinement         in    security     detention         constitutes      atypical   and

significant hardship in relation to the general population.                          See

Sandin, 515 U.S. at 483; Prieto, 780 F.3d at 251 (placing burden

of proof on the inmate).



                                             i.

               To     understand       which       confinement        conditions     are

atypical       and       significant        in    comparison         to   the    general

population, we turn to Beverati and Wilkinson.

               The Beverati inmates complained that the conditions of

their six-month administrative segregation amounted to atypical

and significant hardship.                See Beverati, 120 F.3d at 503-04.

Prison     regulations             specified       that      although      inmates    on

administrative segregation were confined to solitary cells, they

were permitted at least one hour of recreation outside their

cells    seven       days    per    week,    just       as   the   general   population

inmates were.            See id. at 504.          The inmates in administrative

segregation also had substantially the same access to prison

services and educational programming as the general population.


                                             27
See id. at 503.             Nevertheless, the inmates alleged that these

regulations      were       not     being    enforced         and    that,   in      fact,     the

inmates in administrative segregation experienced more onerous

conditions.           See    id.       at    504.        We    credited        the       inmates’

assertions      but     noted,         “[t]he       applicable        prison      regulations

indicate[d]      that       the    conditions       in    administrative          segregation

[we]re similar in most respects to those experienced by inmates

in the general population.”                  Id. at 503.             Although the inmates

offered evidence that conditions in administrative segregation

were more burdensome “than those imposed on the general prison

population,” we concluded these conditions “were not so atypical

that    exposure      to     them      for   six    months”         implicated       a    liberty

interest.      Id. at 504.

              Eight years after Beverati, the Supreme Court further

illuminated      the        atypicality         standard        in      Wilkinson.             The

Wilkinson petitioners were assigned to Ohio’s supermax facility

based    on    the    prison’s         evaluation        of   the     security       risk      they

posed.    A unanimous Court held that incarceration in a supermax

facility implicated liberty interests.                         See Wilkinson, 545 U.S.

at 224.

              The Court emphasized three factors in its analysis:

(1) the magnitude of confinement restrictions; (2) whether the

administrative segregation is for an indefinite period; and (3)

whether       assignment          to    administrative              segregation          had   any


                                               28
collateral consequences on the inmate’s sentence.                                      As for the

first factor, the Court found that incarceration in Supermax was

“synonymous       with       extreme        isolation”;            “every      aspect         of    an

inmate’s       life   [was]        controlled         and       monitored”;       inmates          were

“deprived of almost any environmental or sensory stimuli and of

almost    all    human       contact”;       and      exercise        was    permitted             only

indoors for one hour per day.                    Id. 214.         Second, because inmates

were confined to a supermax facility for an indefinite period,

their    interest       in    receiving       meaningful           procedural          review       was

magnified.        See id. at 224 (“Unlike the 30-day placement in

Sandin, placement [in Supermax] is indefinite . . . .”).                                            And

third,     assignment         to     Supermax         “disqualifie[d]             an    otherwise

eligible       inmate    for       parole    consideration.”                Id.         The    Court

concluded that, “[w]hile any of these conditions standing alone

might    not    be    sufficient       to    create         a    liberty     interest,         taken

together they impose an atypical and significant hardship within

the correctional context.”              Id.

               Notably,      the     Wilkinson         Court       did   not      engage       in     a

point-by-point          comparison          of     the          conditions      that      inmates

experienced in a supermax facility with the ordinary incidents

of prison life.              Nor did it determine whether the applicable

baseline was the general population or any another segregation

unit.     Instead, the Court concluded that incarceration in the

Supermax environment was so atypical and significant that it


                                                 29
would    give   rise   to   a   liberty    interest    “under    any    plausible

baseline.”      Id. at 223.

                                      ii.

             In the case at hand, the district court held Appellant

had     no   liberty   interest,     reasoning        that    “[m]ost    of   the

conditions alleged [we]re nothing more than the usual aspects of

a solitary confinement facility”; “besides the length of his

confinement . . . [Appellant]             ha[d]   not         alleged     living

conditions nearly as bad as those present in Beverati”; and in

any case, Appellant was “subject to substantially more favorable

conditions than the inmates in Wilkinson.”              Incumaa v. Stirling,

No. 9:12-cv-03493, 2014 WL 958679, at *9-10 (D.S.C. Mar. 11,

2014) (internal quotation marks omitted).                    The court further

reasoned:

                  Even     though      Beverati      predates
             Wilkinson, at the very least it suggests
             that the bar for proving an atypical and
             significant hardship is quite high in the
             Fourth Circuit.     Additionally, even since
             Wilkinson the Fourth Circuit has cited
             Beverati   in   rejecting   the    notion   that
             inmates enjoy a protected liberty interest
             in avoiding confinement in administrative
             segregation, United States v. Daniels, 222
             F. App’x 341, 342 n.* (4th Cir. 2007)
             (unpublished) (per curiam) (“Extended stays
             on administrative segregation . . . do not
             ordinarily implicate a protected liberty
             interest.” (citing Beverati, 120 F.3d at
             502)), and courts in this district have
             relied on Beverati in procedural due process
             cases involving administrative segregation.



                                      30
Id. at *9 n.4 (citation omitted).

            The district court was also persuaded by its belief

that Appellant’s stay in the SMU was not indefinite because the

“[Department’s] renunciation procedure puts the duration of his

confinement    into      his      own     hands     to    a    significant          degree.”

Incumaa,   2014     WL    958679,       at   *10.        This,    the       court    stated,

distinguished the present circumstances from those in Wilkinson.

See id.     The court also relied on the fact that, in contrast

with the Wilkinson inmates’ assignment to Supermax, Appellant’s

transfer to the SMU had no effect on his parole eligibility

because Appellant was already disqualified from this privilege

as a result of his sentence to life imprisonment without the

possibility of parole.            The district court was incorrect on two

fronts.

            The district court misapplied Beverati and Wilkinson.

Beverati does not signal that “the bar for proving an atypical

and significant hardship is quite high in the Fourth Circuit.”

Incumaa, 2014 WL 958679 at *9 n.4.                   The bar in our circuit is

neither    higher    nor    lower       than      that    of     the    Supreme       Court.

Rather, Beverati         simply    highlights        a   failure       of    proof.       The

Beverati    inmates      failed      to      meet    their       burden      because      the

evidence    showed       that      administrative             segregation           was   not

significantly worse than confinement in the general population.




                                             31
           The district court’s conclusion that Appellant had no

liberty   interest      in    avoiding     the   onerous    conditions      of   his

confinement     was    also   erroneous.         Appellant      offered    evidence

demonstrating that conditions in the SMU are significantly worse

than in the general population and that the severity, duration,

and indefiniteness of his confinement implicate the concerns the

Supreme Court identified in Wilkinson.               See Wilkerson, 774 F.3d

at 854 (collecting cases that “considered the severity of the

restrictive conditions and their duration as key factors” in the

liberty interest analysis).

           First,       Appellant    demonstrated        that   his    confinement

conditions      were    severe.       He      provided    uncontested      evidence

describing      the    severely     restrictive     and    socially       isolating

environment of the SMU in contrast to the general population --

the near-daily cavity and strip searches; the confinement to a

small cell for all sleeping and waking hours, aside from ten

hours of activity outside the cell per month; the inability to

socialize with other inmates; and the denial of educational,

vocational, and therapy programs.

           In    many    respects,    the      circumstances      of   Appellant’s

incarceration in the SMU mirror the experience of the Wilkinson

inmates in Ohio’s Supermax facility.               It may, in fact, be worse

in some respects: unlike the Wilkinson inmates, Appellant is

subject to a highly intrusive strip search every time he leaves


                                         32
his cell.     And, the Beverati inmates did not allege that they

were socially isolated to a similar degree.

            Second, similar to the Wilkinson inmates’ confinement

in a supermax facility, Appellant’s confinement to the SMU is

extraordinary      in   its       duration     and    indefiniteness.        See

Wilkerson, 774 F.3d at 855 (concluding that inmate’s 39-year

indefinite solitary confinement was atypical and significant).

The district court relied on an unpublished opinion that stated,

“[e]xtended     stays   on       administrative      segregation . . . do   not

ordinarily    implicate      a    protected    liberty    interest.”      United

States v. Daniels, 222 F. App’x 341, 342 n.* (4th Cir. 2007).

But Daniels has no precedential weight, and it did not consider

an   exceptional    20-year       stint   in   highly    restrictive    solitary

confinement, as we do here. 15             Furthermore, the district court

wrongly concluded that Appellant’s stay in the SMU, although not

limited to a particular number of days, was not “indefinite”

because    Appellant    could       secure     release    by   renouncing   his

affiliation with the Five Percenters.                 As we explained above,




      15In fact, it is not clear that Daniels had been
administratively segregated at all -- his interlocutory appeal
pending sentencing was dismissed for lack of jurisdiction. See
Daniels, 222 F. App’x at 342 (“The order Daniels seeks to appeal
is neither a final order nor an appealable interlocutory or
collateral order.   Accordingly, we dismiss the appeal for lack
of jurisdiction.”).




                                          33
renunciation      does      not    guarantee        release    to        the     general

population.

             Appellant was already ineligible for parole by virtue

of    his   sentence   before      he   was   transferred      to     the       SMU,   and

therefore his confinement does not implicate the third concern

identified in Wilkinson.             But that fact, in itself, does not

undermine the “material and substantial similarities” that this

case bears to Wilkinson.            Wilkerson, 774 F.3d at 855 (finding

liberty     interest     pursuant       to    Wilkinson       where       inmate       was

administratively segregated indefinitely in highly restrictive

solitary confinement conditions for nearly 39 years, even though

segregation did not affect the inmate’s parole eligibility).

             Therefore,      Appellant        has    demonstrated           a    liberty

interest in avoiding solitary confinement in security detention.

                                         2.

                                  The Process Due

             Because the district court determined Appellant had no

liberty interest in avoiding the SMU as a matter of law, it did

not    address    whether    the    Department’s       review       of    Appellant’s

ongoing confinement in the SMU satisfied procedural due process

standards.       Because we hold otherwise, we now address whether

the Department’s process meets minimum due process standards.

We conclude that there remains a triable dispute as to whether

the Department afforded Appellant a meaningful opportunity to


                                         34
understand and contest its reasons for holding him in solitary

confinement for the past 20 years.

                                             a.

                 Particularly in the prison context, “the requirements

of    due   process     are     flexible     and   [call]   for    such   procedural

protections as the particular situation demands.”                         Wilkinson,

545 U.S. at 224 (alteration in original) (internal quotation

marks omitted).          To determine whether procedural protections are

sufficient to protect an inmate’s liberty interests, we look to

Mathews v. Eldridge’s three factor test:

                 First, the private interest that will be
                 affected by the official action; second, the
                 risk of an erroneous deprivation of such
                 interest through the procedures used, and
                 the probable value, if any, of additional or
                 substitute    procedural    safeguards;    and
                 finally,    the     Government’s     interest,
                 including the function involved and the
                 fiscal and administrative burdens that the
                 additional     or    substitute     procedural
                 requirement would entail.

424 U.S. 319, 335 (1976); see also Wilkinson, 545 U.S. at 224

(applying these factors).

                 In Wilkinson, the Supreme Court examined the procedure

that Ohio prisons employed to review an inmate’s confinement to

the Supermax unit.              Ohio’s procedural mechanism was a complex

and    comprehensive       three-tier        process     that     afforded   inmates

notice      of    the   basis    for   the    prison’s   transfer     decision   and

provided them an opportunity to contest the decision on at least


                                             35
two occasions.        See 545 U.S. at 215-17, 227.          And the inmate’s

administrative segregation was reviewed pursuant to this three-

tiered   process     at   least   once    every    year.   See   id.    at    217.

Applying the Mathews factors, the Court held that Ohio’s process

was sufficient to protect the inmates’ rights.               See id. at 228-

29.

               Regarding the first factor, the Wilkinson Court noted

that     the      inmates’   private          liberty   interests      must    be

“evaluated . . . within the context of the prison system and its

attendant curtailment of liberties” because “[p]risoners held in

lawful confinement have their liberty curtailed by definition

[and] the procedural protections to which they are entitled are

more limited.”       Wilkinson, 545 U.S. at 225.

               The second factor -- the risk of erroneous deprivation

-- favored the prison in Wilkinson because its review process

was comprehensive and multi-layered:

               The . . . [p]olicy provides that an inmate
               must receive notice of the factual basis
               leading   to    consideration    for  [Supermax]
               placement    and    a  fair    opportunity   for
               rebuttal.    Our procedural due process cases
               have consistently observed that these are
               among    the     most    important    procedural
               mechanisms     for    purposes     of   avoiding
               erroneous deprivations.      Requiring officials
               to provide a brief summary of the factual
               basis for the classification review and
               allowing the inmate a rebuttal opportunity
               safeguards    against     the   inmate’s   being
               mistaken for another or singled out for
               insufficient reason.      In addition to having


                                         36
          the opportunity to be heard at the Committee
          stage, Ohio also invites the inmate to
          submit objections prior to the final level
          of review.   This second opportunity further
          reduces the possibility of an erroneous
          deprivation.

                  . . . .

               If the recommendation is [Supermax]
          placement,     Ohio    requires    that  the
          decisionmaker provide a short statement of
          reasons.    This requirement guards against
          arbitrary     decisionmaking    while   also
          providing the inmate a basis for objection
          before the next decisionmaker or in a
          subsequent   classification   review.    The
          statement also serves as a guide for future
          behavior.

Wilkinson, 545 U.S. at 225-26 (citations omitted).

          As      to     the       third       factor,      concerning     the    state’s

interests, the Court concluded that the value of some aspects of

a traditional adversarial hearing -- particularly the right to

call witnesses -- was “doubtful in comparison to” the danger

they posed.     Wilkinson, 545 U.S. at 228.                        The Wilkinson Court

encouraged     courts         to        consult     the     “informal,     nonadversary

procedures”    discussed           in    Hewitt     v.    Helms,   459   U.S.    460,   476

(1983), which were adequate to protect the prison’s interests in

security and order.           Wilkinson, 545 U.S. at 229.                In Hewitt, the

Supreme   Court        held    that        a    nonadversarial        process     may   be

sufficient so long as it provides “some notice of the charges

against [the inmate] and an opportunity to present his views to




                                               37
the prison official charged with deciding whether to transfer

him to administrative segregation.”             495 U.S. at 476.

                                         b.

          Applying      the    Mathews      factors,    we   conclude    Appellant

has demonstrated a triable dispute on his procedural due process

claim.   The    record,       viewed   in     the    light   most    favorable   to

Appellant, supports Appellant’s assertion that the Department’s

review process is inadequate and fails to honor the basic values

of procedural due process.         This record, bereft of any evidence

that Appellant has ever received meaningful review, stands in

contrast to Wilkinson and falls short of satisfying Hewitt.

                                         i.

          Because Appellant has already been held in solitary

confinement for 20 years, he has a significant private interest

in leaving the restrictive conditions in the SMU and serving

some part of his remaining life sentence outside of solitary

confinement.    Appellant’s private interest in this case, even if

“evaluated . . . within the context of the prison system and its

attendant curtailment of liberties,” is clear.                      Wilkinson, 545

U.S. at 225.        Appellant’s life is severely restricted, and his

body is subjected to extraordinary intrusion on a regular basis.

United States v. Charters, 829 F.2d 479, 491 (4th Cir. 1987)

(“The right to be free of unwanted physical invasions has been

recognized     as     an      integral        part     of    the      individual’s


                                         38
constitutional freedoms . . . .”).                         And as the Supreme Court has

made clear, “administrative segregation may not be used as a

pretext     for       indefinite          confinement          of       an     inmate.     Prison

officials must engage in some sort of periodic review of the

confinement of such inmates.”                       Hewitt, 459 U.S. at 477 n.9; see

also Wilkerson, 774 F.3d at 856 (looking disfavorably upon a

prison’s    “rote       repetition”            of    the    original         justification    for

placing     a        prisoner    in           segregation          to    support       continued

confinement,                 which               rendered                “his            solitary

confinement . . . effectively                       indefinite”         (internal      quotation

marks omitted)).

                                                 ii.

            The risk of erroneous deprivation is also exceedingly

high   in   this       case   for        at    least       three    reasons.        First,    the

Department        has    only        a        single-layered            confinement      review.

According       to    Department         regulations,          the      ICC    makes   the   sole

decision    on       which    inmates          are       candidates      for    release.     The

warden does not participate in the decision to release an inmate

unless the inmate files a grievance against the ICC’s decision

to continue detention.                   This stands in contrast to the multi-

layered procedural mechanism described by the Wilkinson Court.

See Wilkinson, 545 U.S. at 226-27.

            Second, the Department regulations do not require the

ICC to furnish a factual basis for its decisions.                                   Instead, it


                                                    39
need    only       “provide          the     inmate           with       a     copy      of    its

recommendation.”              J.A.        139.         Moreover,         in     practice,      the

Department’s process apparently only requires the ICC to give a

perfunctory explanation supporting its decision to continue to

hold Appellant         in     solitary      confinement.                The    ICC    has    merely

rubber-stamped           Appellant’s              incarceration               in       the     SMU

(figuratively          and     sometimes         literally),            listing        in     “rote

repetition” the same justification every 30 days.                                      Wilkerson,

774 F.3d at 856 (internal quotation marks omitted).                                   The policy

encourages “arbitrary decisionmaking” and risks the possibility

that   the   ICC       may    single       out    Appellant          “for     an     insufficient

reason.”     Wilkinson, 545 U.S. at 226.                      Indeed, the ICC’s ongoing

classification           of        Appellant          is      especially           wanting     for

explanation in light of his nearly perfect disciplinary record

while in security detention.

             Third,          the     Department            regulations         do     not     grant

Appellant       the    right        to    contest       the     factual        bases     for    his

detention       before       the    ICC    makes      its     decision        --     either    with

respect    to    his     assigned         behavior         level   or    his       candidacy    for

release.     The regulations merely provide, “[t]he inmate may be

present for the advancement/release review if security staffing

allows.”     J.A. 138 (emphasis supplied).                         The fact that the ICC

is not required to provide a factual basis for its decision

further increases the “possibility of an erroneous deprivation”


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because Appellant has no “basis for objection” to support his

grievance against the ICC’s decision.                    Wilkinson, 545 U.S. at

226.

           Appellee      nonetheless        argues      that    its    review    process

“meets the flexible due process standard” approved in Wilkinson

because,   compared       to     inmates        confined       in     Ohio’s    Supermax

facility, “Appellant’s custody is reviewed much more frequently”

-- that is, every 30 days as opposed to once a year.                           Appellee’s

Br. 39.     However, in view of Appellant’s uncontested evidence

demonstrating     the    inadequacy        of    the    Department’s       confinement

review, this argument falls flat.

                                        iii.

           The third Mathews factor -- state interest -- accounts

for the    Department’s        need   to    maintain     order      and   security     in

South Carolina’s prisons.             But as the Supreme Court noted in

Wilkinson and Hewitt, the prison’s interest does not eclipse

Appellant’s      well-established          right   to    receive       notice     of   the

grounds for his ongoing confinement and to present his rebuttal

to those grounds.

           We do not decide whether prison review mechanisms must

be as extensive as in Wilkinson in order to pass constitutional

muster.     On    the    facts    presented        in   this     case,    however,     we

conclude   that    the    record      establishes        a     triable    question     of




                                           41
whether the Department’s review process was adequate to protect

Appellant’s right to procedural due process.

                                         IV.
              The    district    court’s         order    of    summary     judgment      is

affirmed as to Appellant’s RLUIPA claim and reversed as to his

procedural due process claim.                We affirm the district court’s

holding with respect to Appellant’s RLUIPA claim because he has

failed   to    show    that     his   religious          beliefs,   rather        than   his

choice to participate in a riot, are the proximate cause of his

continued solitary confinement.                  We reverse the district court’s

order    on    Appellant’s       procedural         due     process       claim    because

Appellant      has    demonstrated      a        liberty       interest     in    avoiding

solitary confinement and Appellee has not proven as a matter of

law that it provided Appellant meaningful review.                                We remand

this case for further proceedings consistent with this opinion.



                                        AFFIRMED IN PART, REVERSED IN PART,
                                       AND REMANDED FOR FURTHER PROCEEDINGS




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