                               PUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 13-8021


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.



                              No. 14-6226


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.



Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria.     Leonie M. Brinkema,
District Judge. (1:12-cv-01199-LMB-IDD)


Argued:   October 28, 2014                Decided:   March 10, 2015


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.


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.




                                 2
DIANA GRIBBON MOTZ, Circuit Judge:

        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.



                                          I.

        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

                                          3
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

(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

       1
       Prieto initially appealed the district court’s dismissal
of his Eighth Amendment claim, but we dismissed the appeal for
failure to prosecute and Prieto does not challenge that decision
in the present appeal.


                                                4
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.



                                              II.

       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

                                               5
confinement conditions, entitling him to procedural Due Process

protections.    See, e.g., Meachum v. Fano, 427 U.S. 215 (1976);

Wolff v. McDonnell, 418 U.S. 539 (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.    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 (1983); Greenholtz v. Inmates of Neb. Penal and

Corr. Complex, 442 U.S. 1 (1979).       In an effort to eliminate the

      2
       The Court has also held that such a liberty interest can
arise from the Constitution itself but only rarely has
recognized such an interest.    See, e.g., Vitek v. Jones, 445
U.S. 480, 493-494 (1980) (recognizing liberty interest in
avoiding involuntary psychiatric treatment and transfer to
mental institution).    For the first time on appeal, Prieto
contends that the Constitution standing alone provides a liberty
interest entitling him to relief. Even if he had preserved this
argument, it would be meritless. See Sandin v. Conner, 515 U.S.
472, 480 (1995) (“The Due Process Clause standing alone confers
no liberty interest in freedom from state action taken within
the sentence imposed.”      (internal quotations and citation
omitted)).



                                   6
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 (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.

      A   decade     later,   in        Wilkinson       v.    Austin,         545     U.S.   209

(2005), the Court applied this “two-part analysis.” 3                                 Wilkinson

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.          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

      3
       The Second Circuit has so dubbed and then applied this
analysis first established in Sandin.   See Tellier v. Fields,
280 F.3d 69, 80 (2d Cir. 2000). Contra Chappell v. Mandeville,
706 F.3d 1052, 1064 (9th Cir. 2013) (bypassing the first prong
in this two-part analysis); but see id. at 1065-66 (Graham, J.,
concurring in the judgment) (labeling majority’s departure from
this “two-part inquiry” a “radical change in due process
jurisprudence”).


                                                 7
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 (quoting Sandin,

515 U.S. at 484).

       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.           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.

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)    (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.            And,

for this reason, the Court concluded that “under any plausible

                                            8
baseline,” the harsh conditions at the supermax “g[a]ve rise to

a liberty interest in their avoidance.”                          Id. at 223-24. 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     possibility         of     avoiding      such

conditions.         Moreover, Prieto fails to recognize that he cannot

satisfy either of the two requirements for a protected, state-

created liberty interest specified in Sandin and Wilkinson.                                 We

address these issues in turn.



                                                III.

      We   begin      with       Prieto’s       apparent         belief    that   Sandin    and

Wilkinson hold that atypical and harsh confinement conditions,

standing    alone,         can     give     rise       to    a     state-created     liberty

interest.      Noting that Wilkinson held that the conditions at the

Ohio supermax imposed an atypical hardship under “any plausible


      4
       Wilkinson went on to hold that a new Ohio law provided the
inmates with constitutionally sufficient process.      Wilkinson,
545 U.S. at 228-29.


                                                 9
baseline,”      545   U.S.   at    223,     Prieto    asserts   that   because     the

conditions on Virginia’s death row are just as harsh as those in

Wilkinson, he too must have a liberty interest.                        But the view

that prison conditions, simply by virtue of their severity, give

rise to a protected liberty interest misreads Sandin, Wilkinson,

and   the    cases    that   preceded       them,    and   overlooks    our    binding

circuit precedent.

      Prieto reads Sandin as “abandon[ing]” the Supreme Court’s

prior teaching in Meachum that a plaintiff must point to a state

statute, regulation or policy in order to “establish a liberty

interest.”      Appellee’s Br. 17.           But the Sandin Court did no such

thing.      Rather, in Sandin, the Court expressly embraced this

portion of Meachum, noting that “[t]he time ha[d] come to return

to the due process principles . . . correctly established in

. . . Meachum.”         Sandin, 515 U.S. at 483.            What the Sandin Court

did do was reject some dicta in Meachum suggesting that any

mandatory language in a regulation “created an absolute right to

. . . certain substantive procedures.”                 Id. at 481.       Because not

all such policies are “designed to confer rights on inmates,”

id. at      482,   Sandin    added     an   additional      showing    necessary   to

establish a protected liberty interest.                     Id. at 482.         After

finding     a   basis     for     an   interest      or    expectation    in    state

regulations, an inmate must then demonstrate that denial of this



                                            10
state-created interest resulted in an “atypical and significant

hardship” to him.       Id. at 484.

      Prieto, now joined by our friend in dissent, also misreads

Wilkinson.     For Wilkinson does not hold that harsh or atypical

prison conditions in and of themselves provide the basis of a

liberty interest giving rise to Due Process protection.                  Rather,

it was “the inmates’ interest in avoiding” erroneous placement

at   the   supermax    under   the   state’s      classification      regulations

combined with these harsh and atypical conditions that triggered

Due Process protections.           Wilkinson, 545 U.S. at 224-25.            The

Wilkinson     Court      simply      applied      the     two-prong     approach

established in Sandin.            Thus Wilkinson neither eliminates the

first prong nor implies that the “nature of th[e] conditions”

alone establishes a protected liberty interest. 5             Id. at 223.

      Moreover,       Prieto   ignores      our     own    binding     precedent

rejecting his approach.           In Lovelace v. Lee, 472 F.3d 174, 202

(4th Cir. 2006), we expressly recognized that Wilkinson requires

a prisoner seeking to bring a procedural due process claim to

satisfy the two-prong test.           Relying on Wilkinson, we held that

      5
       If Prieto’s reading of Sandin and Wilkinson were correct,
a state would “create” a liberty interest simply by imposing
harsh confinement conditions. This outcome would not bring the
Court’s precedent in line with Meachum, as Sandin sought to do.
Rather, it would reject the express teaching in Meachum that a
state-created liberty interest does not arise simply from
“conditions of confinement having a substantial adverse impact
on the prisoner.” 427 U.S. at 224.


                                       11
to   demonstrate      a    liberty       interest             meriting      procedural     due

process    protection,         a    prisoner      must        show    (1)    denial   of   “an

interest that can arise either from the Constitution itself or

from state laws or policies,” and that (2) “this denial imposed

on him an ‘atypical and significant hardship . . . in relation

to the ordinary incidents of prison life.’”                            Lovelace, 472 F.3d

at 202 (quoting Sandin, 515 U.S. at 484).                         Even more recently we

reaffirmed the necessity of the first prong.                                See Burnette v.

Fahey, 687 F.3d 171, 181 (4th Cir. 2012) (explaining that a

“liberty    interest       may       arise   .       .    .   from    an    expectation    or

interest created by state laws or policies” (internal quotation

marks and citation omitted)). 6

     In    addition       to       espousing     a       theory      contrary   to    Sandin,

Wilkinson, and our binding circuit precedent in Lovelace and

Burnette, Prieto’s approach would collapse a prison conditions

     6
        Contrary to Prieto’s contention, a recent Fifth Circuit
case lends him no support.    See Wilkerson v. Goodwin, 774 F.3d
845 (5th Cir. 2014).     There, the court held that an inmate’s
almost    forty-year  incarceration   in  solitary   confinement,
assertedly in violation of a state classification system, gave
rise to a liberty interest protected by due process.       Id. at
851-57.    Prieto points out that the court recognized that the
existence of a state-created interest turns on the nature of the
deprivation “resulting from a state regulation,” rather than the
“language of the regulation.”    Id. at 852 (quotation marks and
citation omitted). Yes, but in so concluding, the Fifth Circuit
expressly acknowledged, as we hold, that to give rise to a due
process challenge, a deprivation must “result[] from” the
alleged violation of a state regulation. Id. Unlike Wilkerson,
Prieto can point to no deprivation resulting from the violation
of a state regulation.


                                             12
Due Process claim into an Eighth Amendment claim.                                     The Eighth

Amendment’s            prohibition       on     cruel      and       unusual           punishment

“appl[ies]        when     the    conditions          of   confinement               compose    the

punishment at issue.”                Rhodes v. Chapman, 452 U.S. 337, 347

(1981).      Allegations that prison conditions “involve the wanton

and       unnecessary        infliction          of     pain,”           or     are      “grossly

disproportionate to the severity of the crime,” or are “without

any penological purpose” fall squarely within the ambit of the

Eighth Amendment -- not the Due Process Clause.                                Id.     The Eighth

Amendment requires a court to examine whether prison conditions

impose cruel and unusual punishment.                           The Due Process clause

requires      a    court    to    determine          whether    a    state       has     provided

prisoners with adequate process in applying prison regulations

and policies.             Treating Sandin and Wilkinson as holding that

confinement        conditions       alone     trigger      a     Due      Process       claim       --

without regard to whether a state policy or regulation provides

the   basis       to    challenge    such       conditions          --    would       elide    that

critical distinction.

      Prieto       thus    errs    in    contending        that      harsh       and     atypical

confinement        conditions       in    and    of     themselves            give    rise     to    a

liberty interest in their avoidance. 7


      7
       Prieto’s contention that Virginia officials waived the
argument that he must point to an entitlement in state
regulations or statutes to establish a Due Process claim is
(Continued)
                                                13
                                      IV.

       Of course, regardless of this initial error, Prieto could

still establish a basis for Due Process protection.                    To do so,

he would need to point to a Virginia law or policy providing him

with    an    expectation     of    avoiding      the     conditions       of   his

confinement and demonstrate that those conditions are harsh and

atypical in relation to the ordinary incidents of prison life.

Prieto does neither.

                                      A.

       The   record   is   clear   that   under   Virginia    law,     a   capital

offender has no expectation or interest in avoiding confinement

on death row.         A written Virginia policy requires all capital

offenders to be housed on death row prior to execution, without

any    possibility    of   reclassification.        See    Virginia    Dep’t     of

Corr. Operating Procedure 830.2(D)(7) (“Any offender sentenced




meritless.   The officials contended before the district court,
albeit briefly, that a liberty interest must be “created by
state laws or policies” and that Prieto could not establish a
right to reclassification because one does not exist under state
law. Defs’ Mem. in Supp. of Mot. Summ. J. 8, ECF No. 80; Defs’
Resp. to Pls’ Mot. Summ. J. 6, ECF No. 81. The district court
clearly understood and indeed stated that the “sole issue”
before it was whether Prieto’s “automatic and permanent”
placement in the restrictive conditions of confinement present
in Virginia’s death row violates Prieto’s Fourteenth Amendment
due process rights, and that this analysis required an initial
determination of “whether a liberty interest exists.”    Prieto,
2013 WL 6019215, at *4.


                                      14
to Death will be assigned directly to Death Row . . . .                                   No

reclassification will be completed.”).

     This state policy forecloses any Due Process expectation or

right on the part of Virginia capital offenders to any other

housing assignment.           For the corollary to the requirement that a

state-created        liberty      interest      must   be     anchored     in    a     state

policy is that when a state policy expressly and unambiguously

disclaims a particular expectation, an inmate cannot allege a

liberty interest in that expectation.                       That is, a court cannot

conclude that death row inmates have a state-created interest in

consideration        for    non-solitary        confinement        when   the     State’s

established          written        policy        expressly           precludes         such

consideration.

     Prieto apparently regards the written Virginia policy as

being    of   no    moment,    but    in   fact    that      policy     eliminates       his

procedural Due Process claim.

                                           B.

     Nor      can    Prieto       establish     that        the   conditions      of    his

confinement        impose    an    atypical      and    significant       hardship        in

relation      to    the    ordinary   incidents        of    prison    life. 8       Prieto



     8
        Of course, a court need                    only reach the atypicality
question if an inmate has been                    deprived of a state-created
liberty interest.  Here there has                 been no deprivation, because
there is no state-created liberty                  interest.  Nevertheless, we
(Continued)
                                           15
recognizes,      as      he    must,   that     the       Supreme    Court    has   yet     to

identify the baseline for determining whether a state regulation

imposes   such      an    atypical      and     significant         hardship.        But    he

raises    several        arguments      in     support       of     his   view    that     the

conditions     of        his    confinement          on     death     row     satisfy      the

atypicality requirement.

     Citing      Beverati        v.    Smith,       120    F.3d   500,      504   (4th   Cir.

1997), Prieto asserts that this court has “long explained that

the ordinary incidents of prison life are established by the

conditions       imposed         on     the         general       prison      population.”

Appellee’s Br. 27.             Prieto also contends that his conditions of

confinement on death row impose an atypical hardship “relative

to ordinary prison conditions” in other Virginia prisons.                                  Id.

And he argues at length that his confinement conditions “mirror”

those    in   Wilkinson,         and    thus        must    impose     an    atypical      and

significant hardship “under any plausible baseline.”                              Id. at 22

(quoting Wilkinson, 545 U.S. at 223); see also id. at 16, 23-27.

     Prieto is wrong on all counts.                        First, neither in Beverati

nor elsewhere have we indicated that in all cases, the relevant

atypicality      baseline         is     the        “general      prison      population.”

Beverati involved inmates initially subjected to thirty days of




address the atypicality inquiry because it is Prieto’s principal
contention and was the basis for the district court’s holding.


                                               16
disciplinary segregation but thereafter retained in segregation

for six more months.            Beverati, 120 F.3d at 501-02.                   Only with

respect   to       those   inmates        in   disciplinary         segregation,       whose

conditions of confinement were set by Maryland (not Virginia)

law,   did    we     describe       the    baseline      as    the    conditions       those

particular inmates could expect to “experience as an ordinary

incident of prison life.”                  Id. at 503.             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.                     Moreover, we have never

interpreted        Beverati     to    establish     the       rule    Prieto    suggests.

Rather,      we    have,   as       Sandin      instructed,         stressed    that     the

atypicality baseline should be determined “‘in relation to the

ordinary incidents of prison life.’”                     Lovelace, 472 F.3d at 202

(quoting Sandin, 515 U.S. at 484).                       Beverati simply does not

stand for the broad proposition Prieto would like it to.

       Second, as to Prieto’s argument that the proper baseline

for assessing his conditions of confinement are the “ordinary

prison    conditions”          in    the       state’s    prisons,          Wilkinson     is

instructive.         None of the parties in Wilkinson even suggested

that “ordinary prison conditions” in other Ohio prisons provided

the proper baseline for the dangerous offenders assigned to the

supermax.         At oral argument in Wilkinson, counsel for both Ohio

and the inmates acknowledged that they had clashed in the lower

                                               17
courts    as     to    the     appropriate       baseline        for   determining

atypicality.      But no party contended that the “ordinary prison

conditions”      of   the    general   prison    population       constituted   the

appropriate baseline for assessing the confinement conditions of

those dangerous prisoner plaintiffs.                  See generally Transcript

of Oral Argument, Wilkinson v. Austin, 545 U.S. 209 (2005) (No.

04-495). 9

     Further, neither Wilkinson nor Beverati involved a discrete

class of inmates who had been sentenced to death and for that

reason    were    required      by     state    law    to   be    confined   under

particular conditions. 10            Rather, Wilkinson and Beverati found

confinement conditions that were not required by a particular

conviction and sentence to impose an atypical and significant


     9
        Ohio suggested that the baseline be the security
classification just below that which renders Ohio prisoners
eligible for housing at the supermax.    The inmates argued that
the baseline should be segregated confinement units at other
Ohio prisons. See Transcript at 6-7, 52.
     10
         Contrary to our dissenting colleague’s suggestion,
confinement of the inmates in Wilkinson to the supermax was not
the “automatic[]” result “of being convicted of certain
offenses.” Conviction of certain egregious crimes did result in
automatic consideration for assignment to the supermax, but not
automatic confinement there.   Wilkinson, 545 U.S. at 216.   In
stark contrast to the case at hand, in Wilkinson a detailed
written state policy governed assignment in every case.    That
policy set forth a highly individualized assignment procedure
“based on numerous factors (e.g., the nature of the underlying
offense, criminal history, or gang affiliation) but [] subject
to modification at any time during the inmate’s prison term.”
Id. at 215.


                                         18
hardship.      These holdings certainly do not mean that similar

conditions pose an atypical and significant hardship where, as

here, state law does mandate that a particular conviction and

sentence require confinement under such conditions.

         When determining the baseline for atypicality, a court must

consider whether the confinement conditions are imposed on a

prisoner because of his conviction and sentence.                          For conditions

dictated      by    a     prisoner’s      conviction          and   sentence       are    the

conditions constituting the “ordinary incidents of prison life”

for that prisoner.              Sandin, 515 U.S. at 484; Lovelace, 472 F.3d

at 202; Beverati, 120 F.3d at 502-03.                           As the Tenth Circuit

recently     explained,          conditions         “will    differ     depending        on    a

particular     inmate’s         conviction      and    the     nature     of    nonpunitive

confinement        routinely       imposed      on    inmates       serving      comparable

sentences.”         Rezaq v. Nalley, 677 F.3d 1001, 1012 (10th Cir.

2012).

         We do not hold, or even suggest, that differences in the

nature of a conviction or the length of a sentence give rise to

different liberty interests.                  Rather, we simply recognize, as we

must, that in the unusual instances in which state law mandates

the confinement conditions to be imposed on offenders convicted

of   a    certain       crime    and   receiving       a     certain     sentence,       those

confinement        conditions          are,     by     definition,        the     “ordinary

incidents     of    prison       life”   for    such        offenders.         Virginia       law

                                               19
mandates that all persons convicted of capital crimes are, upon

receipt of a death sentence, automatically confined to death

row.    Thus, in Virginia the ordinary incidents of prison life

for those inmates, including Prieto, include housing on death

row.

       This   conclusion   follows   from   the   importance   the   Supreme

Court has attached to the sentence of conviction in assessing

possible Due Process violations.          In Meachum, the Court rejected

the contention that “burdensome conditions” imposed by transfer

to a maximum security facility provided the basis for a Due

Process claim because those conditions fell “within the normal

limits or range of custody which the conviction has authorized

the State to impose.”        Meachum, 427 U.S. at 225 (emphasis added)

(quoted with approval in Sandin, 515 U.S. at 478).              Similarly,

in rejecting a prisoner’s Due Process claim, the Sandin Court

found    significant   the    fact   that   the   challenged   confinement

conditions fell “within the expected perimeters of the sentence

imposed.”      Sandin, 515 U.S. at 485 (emphasis added).               As the

Court explained in Sandin and repeated in Wilkinson, a prisoner

does not establish a state-created liberty interest in avoiding

disciplinary    segregated    confinement    if   such   confinement    “does

not present a dramatic departure from the basic conditions of

[the inmate’s]     indeterminate     sentence.”    Id.   (emphasis   added);

Wilkinson, 545 U.S. at 223.

                                     20
       Prieto, like any other inmate, can only be deprived of that

to   which     he       is   entitled.      Thus,     in    determining         whether    a

deprivation imposes a significant or atypical hardship on him,

the court must use as its benchmark the incidents of prison life

to which he is entitled.               Virginia imposes death row confinement

on capital offenders because of the crime they have committed

and the sentence they have received.                       That confinement is the

expected      --    indeed     mandated    --    confinement       condition       flowing

from    the    conviction        and     sentence.         State   law        defines    the

perimeters         of   confinement      conditions,       and   here    state     law    is

pellucid:          tethered to the death sentence in Virginia is pre-

execution confinement on death row.



                                            V.

       We do not in any way minimize the harshness of Virginia’s

regime.        Prieto’s        conditions       of   confinement        are    undeniably

severe.            Indeed,     the     district      court,      perhaps       correctly,

described the isolation that characterizes Virginia’s death row

as “dehumanizing”.             Prieto, 2013 WL 6019215, at *6. 11                 But the


       11
       We note, however, that the conditions on Virginia’s death
row are apparently not altogether unlike those imposed by some
other states on their capital offenders.    A study cited by one
of Prieto’s amici, the ACLU, reports as much.        See Mark D.
Cunningham & Mark P. Vigen, Death Row Inmate Characteristics,
Adjustment,   and  Confinement:   A   Critical   Review  of  the
Literature, 20 Behav. Sci. & L. 191, 204 (2002).


                                            21
Supreme Court has long held, as it did in Wilkinson, that state

correctional     officials    have    broad     latitude       to   set    prison

conditions as they see fit since “[p]rison security, imperiled

by the brutal reality of prison gangs, provides the backdrop of

the state’s interest.”        545 U.S. at 227.              Recently the Court

emphasized once more that “[t]he difficulties of operating a

detention center must not be underestimated by the courts,” and

that     “correctional    officials    .   .   .     must    have   substantial

discretion to devise reasonable solutions to the problems they

face.”     Florence v. Bd. of Chosen Freeholders, 132 S. Ct. 1510,

1515 (2012).

       Of course, the Supreme Court could prescribe more rigorous

judicial    review   of   state   statutes     and     regulations       governing

prison confinement conditions.         But it has not.          Concerned with

eliminating     “disincentives       for   States      to     ‘codify’      prison

management    procedures,”    the    Sandin    Court    adopted     an    approach

that would encourage States to codify their policies regarding

treatment and confinement of inmates.              515 U.S. at 482.           This

approach, reaffirmed in Wilkinson, provides inmates and prison

administrators with clear notice of a prisoner’s rights, but it

also permits a given state to codify procedures establishing

very restrictive confinement conditions.             The judgment that this

trade-off strikes the correct balance between the dictates of

the Due Process Clause and the pressures on state correctional

                                      22
systems is one that the Supreme Court has made and we cannot

disturb.   Of course, the Court may one day alter its approach to

the Due Process Clause.   But unless and until the Court retreats

from Sandin and Wilkinson, a procedural Due Process claim like

that offered by Prieto fails.

     For the foregoing reasons, we reverse the judgment of the

district court. 12

                                                         REVERSED




     12
        Because 42 U.S.C. § 1988(2) authorizes the award of
attorney’s fees only to a “prevailing party,” we must also
reverse the order awarding costs and attorney’s fees to Prieto.


                                23
WYNN, Circuit Judge, dissenting:

     A unanimous Supreme Court told us in no uncertain terms

that prisoners have a liberty interest in avoiding indefinite,

highly restrictive imprisonment.                    Wilkinson v. Austin, 545 U.S.

209, 220–21 (2005).               And the Supreme Court told us that in

determining        whether    such    a    liberty        interest   exists,      we     must

focus   on    the    “the    nature       of    those      conditions      themselves      in

relation to the ordinary incidents of prison life.”                             Id. at 223

(quotation marks omitted).

     The     Supreme        Court     found         the    conditions      in    Wilkinson

sufficiently egregious that “taken together[,] they impose an

atypical     and        significant       hardship         within    the    correctional

context . . . [and thereby] give rise to a liberty interest in

their avoidance.”           Id. at 224.         In other words, the restrictive

conditions         could     be      imposed—but           not    without       procedural

safeguards such as notice and an opportunity to be heard.

     This     case      presents     conditions           of   confinement      strikingly

similar      to,    and      arguably      more       egregious      than,       those    in

Wilkinson.          I     would     therefore         follow     Wilkinson       and     find

Plaintiff Alfred Prieto entitled to at least some modicum of

procedural due process.              In my view, the majority opinion reads

Wilkinson     unnecessarily          narrowly        in    signing   off    on    Prieto’s

automatic, permanent, and unreviewable placement in the highly



                                               24
restrictive conditions of Virginia’s death row.                             Accordingly, I

respectfully dissent.



                                               I.

                                               A.

     “The      Fourteenth          Amendment’s        Due      Process    Clause    protects

persons against deprivations of life, liberty, or property; and

those    who     seek        to    invoke      its     procedural        protection        must

establish that one of these interests is at stake.”                           Id. at 221.

     In Wilkinson, the Supreme Court found a prisoner’s liberty

interest at stake and got there by noting that “the touchstone

of the inquiry into the existence of” the liberty interest in

avoiding     restrictive           conditions        of     confinement      was    not    the

language    of    regulations           “but   the     nature      of    those     conditions

themselves       in    relation         to   the     ordinary     incidents        of   prison

life.”     545 U.S. at 222 (citation and quotation marks omitted).

The centerpiece of the Court’s Wilkinson opinion, therefore, was

an analysis of the conditions themselves.

     Nowhere          in    Wilkinson        did    the     Supreme      Court     parse    the

language    of    any       law    or   regulation        or    otherwise    suggest       that

written words governing the conditions of confinement are the

linchpins to finding a liberty interest.                         See id.      Instead, the

Court    analyzed          the    conditions       themselves      and    then     held    that

“taken together they impose an atypical and significant hardship

                                               25
within      the    correctional      context.           It    follows      that     [the

prisoners] have a liberty interest in avoiding” them.                         Id. at

224.       In other words, the Supreme Court looked not at verbiage

but at the facts on the ground, comparing the conditions at

issue with typical conditions.                 And finding the conditions at

issue atypically harsh, the Court held that a prisoner subjected

to the conditions is due at least an informal notice and hearing

before he is subjected to them. 1

       Several      conditions     caught      the     Supreme    Court’s     eye     in

Wilkinson:        the   solitary   nature      of    the     confinement    and     near

complete prohibition on human contact; the lack of stimuli, with

exercise limited to one hour per day in a small indoor room; the

potentially       indefinite     period     of   the    placement—with       only     an

annual review after the initial thirty-day review; and potential

disqualification of inmates otherwise eligible for parole.                           See

Wilkinson, 545 U.S. at 223-24.              The Supreme Court looked at the

totality of the conditions and held that “taken together they

impose      an     atypical    and    significant          hardship     within       the

correctional context.”         Id. at 224.




       1
        The Supreme Court did not, however, hold that the
conditions themselves were unconstitutional and needed to be
changed; that would be a separate, Eighth Amendment inquiry.
Nor would I hold so here, not least because, as in Wilkinson,
that is not before us.


                                          26
       In    this    case,       the     conditions      of    confinement          essentially

mirror those in Wilkinson.                      Prieto is deprived of almost all

human contact, even cell-to-cell contact with other death row

inmates.       His conditions of confinement are largely devoid of

stimuli:       He must remain in his small single cell for twenty-

three hours a day, except for one hour five days per week, when

he may exercise in a small enclosure with a concrete floor and

no exercise equipment.                  And Prieto’s confinement on death row is

indefinite:         No opportunity for review of the placement exists.

       In    some    respects,          Prieto’s      conditions          are    actually       more

restrictive than those in Wilkinson.                      For example, Prieto’s cell

is smaller than the cells in Wilkinson.                        Unlike the prisoners in

Wilkinson, Prieto has no opportunity for group programming or

religious      services.              And   Prieto     has    fewer       opportunities          for

exercise.

       One    condition          at    issue    in    Wilkinson      but        absent    here    is

disqualification           for        parole.     Specifically,           inmates        otherwise

eligible      for     parole          became    ineligible      when       placed        into    the

restrictive supermax confinement at issue in Wilkinson.                                          545

U.S.    at    224.         But    the    Supreme      Court    in    no     way    limited       its

holding      only     to    those       (few)    inmates      who    would        otherwise       be

eligible for parole but for their supermax confinement.                                     And I

agree       with     the     Seventh        Circuit     that        any     contention          that

Wilkinson turned on the (in)eligibility for parole constitutes

                                                 27
“far   too     crabbed       a   reading    of   the    decision.”            Westefer    v.

Snyder, 422 F.3d 570, 590 (7th Cir. 2005).

       In the end, the Supreme Court felt “satisfied” that the

conditions in Wilkinson, taken together, “impose[d] an atypical

and    significant           hardship      under      any     plausible        baseline.”

Wilkinson, 545 U.S. at 223 (emphasis added).                       The Supreme Court

therefore felt no need to identify the baseline to which the

conditions should be compared.               Id.

       Here,    I     feel       “satisfied”     that       Prieto’s     conditions       of

confinement, which are strikingly similar to those in Wilkinson,

when    taken       together       “impose[]     an     atypical       and    significant

hardship under any plausible baseline.”                     Id.   And if the Supreme

Court did not need to identify a particular baseline to reach

such a conclusion, neither do I.

                                            B.

       In my view, the majority opinion seeks to engage in just

the sort of “parsing” that the Supreme Court moved away from

with Sandin and Wilkinson.                 For example, the majority opinion

understands Sandin and Wilkinson as holding that a prisoner must

first show that a written prison regulation gives rise to a

protected      liberty       interest      before     reaching     the       atypical    and

significant hardship inquiry.                See ante at 6-14.           But following

that logic to its end would mean that prisoners have no interest

in avoiding even extreme hardships so long as a state simply

                                            28
removes      all     delineating           prison       regulations       or      expressly

disclaims any liberty expectation.                       Yet it was precisely this

type of “parsing” and resulting “disincentive[s] for States to

promulgate procedures for prison management” that the Supreme

Court sought to curtail.             Wilkinson, 545 U.S. at 222.

       The   majority           opinion     also     “re-organizes”         the     Supreme

Court’s Wilkinson analysis in misleading ways.                          For example, the

only    “threshold            question”    the     Supreme      Court     identified       in

Wilkinson          was        whether      “the         inmates        establish[ed]       a

constitutionally          protected       liberty       interest”—not      the    sentence

fragment from a different paragraph that the majority opinion

redlines in to play the part of the “threshold question.”                                545

U.S. at 221.         A second example:              The majority opinion contends

that   the   risk        of    erroneous    placement       coupled      with    the    harsh

conditions “triggered” due process protections.                             Ante at 11.

Yet in Wilkinson, the Supreme Court considered the erroneous

placement issue only after it had already held that a liberty

interest in avoiding the harsh conditions existed, as a factor

for determining whether the procedures in place sufficed.                                545

U.S. at 224-25.

       The majority opinion places much emphasis on the fact that

because all capital offenders in Virginia automatically land on

death row, Prieto has no interest in avoiding its conditions and

thus   no    due    process       rights.         See    ante     at   14-15.      In    this

                                             29
respect,         too,    Prieto’s       case    overlaps           with       Wilkinson:            The

Supreme          Court        noted     that         some        defendants          there         were

automatically assigned to the restrictive supermax confinement

as    a    consequence         of     being    “convicted          of     certain         offenses.”

Wilkinson, 545 U.S. at 216.                     But the Supreme Court in no way

excluded         those    inmates       from     the        ambit       of     its       holding     or

otherwise suggested that because of their automatic assignment,

they       had    no     liberty       interest       in     avoiding          the       restrictive

supermax conditions.

          Instead,       the    Supreme       Court         broadly       stated          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.’”          Id.     at    221    (citation       omitted).               In    my    view,     the

majority opinion’s myopic search of a written regulation betrays

this       touchstone          and      “stray[s]           from        the        real     concerns

undergirding the liberty protected by the Due Process Clause.”

Sandin, 515 U.S. at 483.

          I agree with the majority opinion that the Supreme Court

has    been      anything       other    than     consistent            in    its     approach       to

prisoner due process cases.                     The Supreme Court suggested that

prisoner         liberty        interests         exist          whenever           something        is

                                                30
sufficiently important.                   See, e.g., Morrissey v. Brewer, 408

U.S. 471 (1972).          Then it indicated that liberty interests are a

function of mandatory verbiage in written regulations.                                        See,

e.g., Wolff v. McDonnell, 418 U.S. 539 (1974).                             Later the Court

rethought that approach, holding that such verbiage is, in fact,

not so important after all.                 See, e.g., Wilkinson, 545 U.S. 209.

It   is,   therefore,         not    surprising       that     lower      courts       have    not

found it easy to agree on how best to read the due process tea

leaves in the prison context.                   See ante at 7 (comparing Chappell

v. Mandeville, 706 F.3d 1052 (9th Cir. 2013), with Tellier v.

Fields, 289 F.3d 69 (2d Cir. 2000)).

       Finally,     the       majority      opinion        suggests      that     an    analysis

like mine bucks controlling circuit precedent, and particularly

Lovelace v. Lee, 472 F.3d 174, 202 (4th Cir. 2006).                                    Yet that

case    does      not     present         the   obstacle          the     majority      opinion

portrays.        In Lovelace, we admonished the district court for its

failure     to     address         the    plaintiff’s        due        process    claim      and

remanded the matter to the district court for a determination

“in the first instance.”                   472 F.3d at 203.                Therefore, even

assuming    that        one    could      not   square       my    view     with       Lovelace,

anything Lovelace said about the due process claim seems to be

only   dictum,      and       in    any    event     the    assertion       that       the    case

“reject[ed] [my] approach” is gross overstatement.                                Ante at 11.

Moreover, to the extent Lovelace parts ways with Wilkinson, we

                                                31
certainly     “have           no   authority       to   overrule       a     Supreme       Court

decision.”        Scheiber v. Dolby Labs., Inc., 293 F.3d 1014, 1018

(7th Cir. 2002) (Posner, J.).

     In sum, taking the Supreme Court at its word, it told us

that we are not to parse written regulations but rather 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.”      Wilkinson, 545 U.S. at 223 (quotation marks omitted).

Here, as in the strikingly similar Wilkinson, the conditions are

sufficiently egregious that “taken together[, they] impose an

atypical     and        significant        hardship       within       the        correctional

context”     when       compared      to   “any     plausible        baseline”       and    thus

“give      rise        to     a    liberty     interest        in     their       avoidance.”

Wilkinson, 545 U.S. at 223.

     That being said, there is no necessary tension between the

existence     of        a      liberty     interest       in    avoiding          restrictive

conditions        of        confinement      and,       for    example,       the        state’s

penological interests or the fact that we are dealing with a

prison and not a resort.                     As the Supreme Court has stated,

“harsh conditions may well be necessary and appropriate in light

of   the    danger          that   high-risk        inmates    pose        both    to    prison

                                               32
officials and to other prisoners.           That necessity, however, does

not diminish our conclusion that the conditions give rise to a

liberty interest in their avoidance.”          Id.



                                      II.

     Once a liberty interest is established, the question then

becomes what process is due to protect it.             To determine whether

procedural safeguards sufficed to protect the liberty interest

in Wilkinson, the Supreme Court looked to three factors:

     “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.”

Id. at 224–25 (quoting Mathews v. Eldridge, 424 U.S. 319, 335

(1976)).     Applying those factors, the Supreme Court held that

“informal,   nonadversary    procedures”      informing     inmates    of   the

factual    basis    for   their    restrictive         placement,     a     fair

opportunity for rebuttal, and regular review sufficed to comport

with due process.    Id. at 229.

     Here, any attempt to apply the salient factors would be in

vain—because   Virginia     affords    capital       offenders   no   process.

Virginia tries to offer up its sentencing procedures as all the

due process required.     Of course, the same could be said of all

                                      33
prisoners.       Yet no Supreme Court case has ever suggested that is

so.    Further, under such a regime, sentencing discretion could

result in two defendants who commit the same crime and possess

the    same      aggravating      factors        receiving    vastly   different

conditions       of    confinement       and    procedural    safeguards.      The

conviction and sentence alone, therefore, do not represent a

principled manner for determining due process rights. 2

       At the end of the day, all of this ink is being spilled

over       whether    Virginia   needs    to    provide   minimalist   procedural

safeguards like those in Wilkinson to less than ten prisoners—

the current number of inmates on Virginia’s death row.                      Again,

the “harsh conditions may well be necessary and appropriate” for

these prisoners.          Wilkinson, 545 U.S. at 223.            But that “does

not diminish” the conclusion that “the conditions give rise to a

liberty interest in their avoidance”—and that all that would be

required to comport with due process would be informal notice

and an informal opportunity to be heard.                     Id. at 224.     These

procedural safeguards, in my view, Prieto should have.



       2
       The majority opinion purports that it does “not hold, or
even suggest, that differences in the nature of a conviction or
the length of a sentence give rise to different liberty
interests.”   Ante at 19.     But allowing Virginia to confine
Prieto automatically, based on his death sentence, to highly
restrictive conditions for the duration of his incarceration (so
far, almost seven years) and without any opportunity for review
does just that.


                                           34
                              III.

     For the reasons above, I would affirm the district court’s

judgment and, accordingly, respectfully dissent.




                               35
