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IN THE UN IT ED STATES DISTRI CT COU RT FOR THE EASTERN DISTRICT OF VIRGINIA

Alexa ndria Divis ion

Alfredo Prieto, Plaintiff,
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Harold Clarke, ct!!1.
Dcfcnd ~lJlt s.

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1:l2c\'1199 (LMB/IDD)

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MEMORANDUM OP IN ION AND OR DER
Alfredo Prieto, a Virginia inmate proceeding J2[Q sc, has filed a civil ri ghts action ,
pursuant to 42 U.S .C. § 1983 , nllcgillg that the visitation policy at Sussex I State Pri son
constitutes cruel and unusua l puni shmen t, and that hi s confinement in a spec ial hous ing unit
violates his right \0 due process and constitutes cruel and unusual punishment. After reviewi ng
plaintiffs co mplaint, the claim against defendan ts conce rnin g the visitation policy must be
dism issed pursuant to 28 U.S.C. § 19 15A(b)( I) for failure to state a claim for which relief can be
granted .! However, p iainliffhas sta ted a cla illlihat hi s due process rights have been viola ted by
his indefinite placement in a spec ial housin g unit.
1 Section 19 15A provides: (a) Sc rccn in g.- The court sha ll review, before docketing, if feasib le or, in any event, as soon as practicable afte r docketing, a compla int in a civil action in whi ch a prisoner seeks redress froIll a gove rnmental entity or officer or employee of a govenunenta l entit y.
(b) Grounds for dismissal.- On review, the CO llrt s hall ident ify cognizable claims or di smiss the co mpl aint, or any po rti on o r the comp laint, if the complaint-
(I) is frivolous , malicious, or fail s to state a cla im upon whic h relief can be granteci ; or (2) seeks mone tary relie f from a ciefendant who is imlll une from suc h relicI'.

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I. Background Plaintiff is a death row inmate at Sussex I State Prison. CompI. 5. He alleges that the prison's policy permitting death row inmates to receive visitors from only immediate family members violates his constitutional rights and constitutes cruel and unusual punishment. Id. He also claims that his right to due process is being violated by his placement in "special housing confinement." Id. at unnumbered page 1. He claims that he has not received a disciplinary violation and is not a "valid security risk" and that keeping him in a six foot by sixteen foot "single cage" is cruel is unusual punishment. Id. Plaintiff attached to the complaint copies of several informal complaints and grievances that he filed at Sussex I. In response to an informal complaint he filed on July 24,2012, a Sussex I employee wrote that plaintiffs "special housing confinement was determined by the judicial system." Att. 1 at 15, ECF No. I-I.
II. Standard of Review In reviewing a complaint pursuant to § 1915A, a court must dismiss a prisoner complaint that is frivolous, malicious, or fails to state a claim upon which relief can be granted. 28 U.S.C. § 1915A(b)(1). Whether a complaint states a claim upon which relief can be granted is determined by "the familiar standard for a motion to dismiss under Fed. R. Civ. P. 12(b)(6)." Sumner v. Tucker, 9 F. Supp. 2d 641, 642 (E.D. Va. 1998). Thus, the alleged facts are presumed true, and the complaint should be dismissed only when "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). To survive a 12(b)(6) motion, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. ---, ---,129 S. Ct. 1937,1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007». "A claim has facial plausibility when the plaintiff pleads
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factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. However, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice" to meet this standard, id., and a plaintiffs "[f]actual allegations must be enough to raise a right to relief above the speculative level ...". Twombly, 550 U.S. at 55. Moreover, a court "is not bound to accept as true a legal conclusion couched as a factual allegation." Iqbal, 129 S. Ct. at 1949-50.
III. Analysis To establish a claim for cruel and unusual punishment due to conditions of confinement that violate the Eighth Amendment, a plaintiff must allege facts sufficient to show (1) an objectively serious deprivation of a basic human need-that is, one causing serious physical or emotional injury-and (2) that prison officials were deliberately indifferent to that need. Farmer v. Brennan, 511 U.S. 825, 834 (1994); Wilson v. Seiter, 501 U.S. 294,198 (1991). To meet the first prong, plaintiff must allege facts sufficient to show that the condition complained of was a "sufficiently serious" deprivation of a basic human need. Farmer, 511 U.S. at 834) (citing Wilson, 501 U.S. at 298). Only extreme deprivations will make out an Eighth Amendment claim, and it is plaintiffs burden to allege facts sufficient to show that the risk from the conditions of his confinement was so grave that it violated contemporary notions of decency and resulted in serious or significant physical or emotional injury. Hudson v. McMillian, 503 U.S. I, 8 (1992); Strickler v. Waters, 989 F.2d 1375, 1379-81 (4th Cir. 1993). To meet the second prong, plaintiff must allege facts sufficient to show that defendants were deliberately indifferent, that is, that they knew of facts from which an inference could be drawn that a "substantial risk of serious harm," was posed to his health and safety, that they drew that inference, and then disregarded the risk posed. Farmer, 511 U.S. at 837.
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Claims ofcruel and unusual punishment that concern the deprivation of liberty interests must be reviewed according to the principles of Sandin v. Conner, 515 U.S. 472 (1995). Confinement does not strip inmates of all liberty interests, and the due process clause of the Fourteenth Amendment mandates procedural safeguards before an inmate can be punished by conditions so dramatically different from the basic range of constraints contemplated by his sentence. Id. at 483-84. However, such liberty interests "will generally be limited to the freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause by its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id. at 484. On the other hand, the protections of the due process clause do not attach unless the plaintiff was deprived of such a liberty interest. Lekas v. Briley, 405 F.3d 602,607 (7th eir. 2005).
A. Visitation Plaintiffs claim regarding his visitation rights fails to meet the first prong of the test for cruel and unusual punishment. The right to visitation privileges with extended family and friends is not a basic human need, and it is well established that a prisoner has no direct constitutional right to visitation. See,~, Kentucky Dept. of Corrections v. Thompson, 490 U. S. 454, 460-61 (1989) ("The denial of prison access to a particular visitor is well within the terms of confinement ordinarily contemplated by a prison sentence, therefore is not independently protected by the Due Process Clause."). Furthermore, courts that have analyzed inmates' entitlement to visitation under the Sandin principles also have concluded that there exists no liberty interest in visitation while incarcerated which is adequate to trigger the due process protections of the Fourteenth Amendment. See,~, Stevens v. Robles, 2008 WL
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667407 at **6-7 (S.D. Cal. Mar. 7, 2008) (prisoners have no right to family visits, either independently protected by the Due Process Clause or as a liberty interest created by state laws or regulations), and cases cited. Therefore, plaintiff has failed to state a claim for which § 1983 relief can be granted.
B. Housing Placement
Plaintiffs claim regarding his housing placement also fails to meet the first prong of the test for cruel and unusual punishment. He does not assert that the decision about his housing placement affects a basic human need, and he does not claim to have any injury from being in the segregated housing unit. Alleging that the fact alone of his confinement to the segregated housing unit constitutes cruel and unusual punishment, without injury, is insufficient. See Sweet v. South Carolina Dep't. of Corrections, 529 F.2d 854, 861 (4th Cir. 1975) C'''[I]solation from companionship,' 'restriction on intellectual stimulation and prolonged inactivit' inescapable accompaniments of segregated confinement, will not render segregated confinement unconstitutional absent other illegitimate deprivations ...").
However, plaintiff has sufficiently stated a claim that his placement in a special housing unit violates his due process rights. When a defendant is lawfully convicted and confined to jail, he loses a significant interest in his liberty for the period of that sentence. Gaston v. Taylor, 946 F.2d 340, 343 (4th Cir. 1991). Nonetheless, when applying the Sandin principles to plaintiffs claim, plaintiffs indefinite confinement in a restrictive housing unit amounts to an "atypical and significant hardship ... in relation to the ordinary incidents of prison life," and warrants constitutional protection. Sandin, 515 U.S. at 484. While a thirty-day placement in disciplinary segregation in Sandin did not implicate a liberty interest, the Supreme Court has held that an indefinite placement in highly restrictive conditions suffices to implicate such an interest.
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Wilkinson v. Austin, 545 U.S. 209,213,224 (2005); see also Harden-Bey v. Rutter, 524 F.3d 789, 793 (6th Cir. 2008) (holding that the duration of restrictive segregation bears on whether a cognizable liberty interest exists). Because plaintiff alleges that he has been in a special housing unit for several years without the right to due process protections, he has stated a claim upon which relief could be granted.
IV. Motion to Proceed In Forma Pauperis Plaintiff has applied to proceed in forma pauperis in this action; however, to determine whether plaintiff qualifies to proceed in forma pauperis, the Court directs plaintiffs correctional institution to provide additional information.
Accordingly, it is hereby ORDERED that plaintiffs claim regarding Sussex I State Prison's visitation policy be and is DISMISSED WITH PREJUDICE for failure to state a claim, pursuant to 28 U.S.C. § 1915A(b)(1); and it is further ORDERED that plaintiffs request to proceed in forma pauperis is conditionally granted to the extent that plaintiff need not prepay the filing fee at this time. Plaintiff is directed to sign and return the attached Consent Form within thirty (30) days from the date of this Order. If the Court grants plaintiff in forma pauperis status, he will be required to pay the filing fee in installments after first paying an initial filing fee; and it is further ORDERED that the Clerk request plaintiffs institution to provide an Inmate Account Report Form on plaintiff within thirty (30) days of the date of this Order; and it is further ORDERED that plaintiffs failure to comply with any part of this Order within THIRTY (30) DAYS FROM THE DATE OF THIS ORDER, or failure to notify this Court immediately in
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the event he is transferred , released, or otherwise relocated, may result in the dismissa l of this complai nt pursuant to Fed. R. Civ. P. 4 1(b).

To appeal , plaintifTmust file a written notice of appea l with the Clerk's Office w ithin thirty (30) days or the date of thi s Order. See Feci. R. App. P. 4(a). A written notice of appeal is a short statement stating a desire to appeal thi s Order and noting the date of the Order plaintiff wants to appea l. Pl aintiffneed not explain the grounds rorappeal until so directed by the COllrt.

The Clerk is directed 10 send a copy or thi s O rder and a Conse nt Form 10 plaintirf, as well as a copy or thi s Order and the Inmate Account Repo rt Form to plaintirrs curren t instituti on of confinement .

d..DJ2 Entered this

IV day or ~~

A lexandria, Virginia

2012.
~~ ., . lsI
Lco nle M. Bnnkcma Uni ted Stu tes Di s trict Judge

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 Case 1:12-cv-01199-LMB-IDD Document 44 Filed 02/20/13 Page 1 of 1 PageID# 486

IN THE UNITED STATES DISTRICT COURT FOR EASTERN DISTRICT OF VIRGINIA Alexandria Division
ALFREDO PRIETO,

zee
FEB 2 o 2013
clHllff"

Plaintiff, HAROLD W. CLARKE, et al.

1:12CV1199 (LMB/IDD)

Defendants.

ORDER
In their response to defendants' Motion for Summary Judgment plaintiff's counsel correctly argue that defendants' motion is premature because plaintiff has not had a chance to conduct discovery into facts which would be relevant to defendants' motion. For this reason, it is hereby
ORDERED that defendants' Motion for Summary Judgment [Dkt No. 24] be and is DENIED WITHOUT PREJUDICE, and it is further
ORDERED that a Scheduling Order be issued forthwith.
The Clerk is directed to forward a copy of this Order to
counsel of record.
Entered this £p day of February, 2013.

Alexandria, Virginia

Leonie M. Brinkema
United States District Judge

 
 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division

ALFREDO PRIETO, Plaintiff,
v. HAROLD C . CLARKE, et al.,
Defendants .

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NOV I 2
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MEMORANDUM OPINION

Before the Court are the parties' cross-motions for summary

judgment . For the reasons that follow, Pl aintiff's Motion for

Summary Judgment will be granted and the Motion for Summary

Judgment by defendants will be denied.

I .

BACKGROUND

Alfredo Prieto ("Prieto" or "plaintiff") is an inmate at

Sussex I State Prison ("SISP") in Waverly , Virginia, awaiting

execution for two capital murder convictions . Like all capital

offenders in virginia,l plaintiff is confined in a separat e

housing unit commonly known as "death row." He has been there

since October 30, 2008. See Defs.' Mem . in Supp. [hereinafter

Defs. ' Mem. ], Ex . 1 , ~ 4 .

1 As of October 2013, plaintiff was one of only eight capital offenders in the state, all of whom are housed at SISP. See Pl.'s t-1em . in Supp. of Summ. J. [hereinafter Pl . 's Mem .), Ex . 19, at 75 : 9-10.

Conditions on death row are more restrictive than incarceration in the general population housing units at SISP, which is a maximum-security facility. The former amount to a form of solitary confinement: On average, plaintiff must remain in his single cell for all but one hour of the day. See PI.'s Mem., Ex. 27 <"Virginia Department of Corrections, Operating Procedure 460.A"}; see also id. at Ex. 1, at 91:1-15. That cell measures 71 square feet, id. at Ex. 16, at 4, and features only a narrow, mesh-covered window for natural light. It is otherwise illuminated by a main light mounted on the wall. In the evening hours, when the main light is turned off, a nightlight remains on in plaintiff's cell, as do the pod lights immediately outside of it, ensuring that his cell is never completely dark. See id. at Ex. 15, at 57:14-58:7. Plaintiff is allowed to leave his cell for just one hour of outdoor recreation approximately five days per week. Id. at Ex. 27, at 6. During that time, however, he is limited to a similarlysized outdoor cell with a concrete floor and no exercise equipment. See id. at Ex. 1, at 92:1-19. Plaintiff is not allowed to use the gymnasium or prison yard, nor is he given an opportunity for in-pod recreation. See id. at Ex. 1, at 91:125. Plaintiff may leave his cell for a ten-minute shower three days per week. Id. at Ex. 27, at 7. He may also purchase a
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television and compact disc player for use in his cell, as well as request delivery of certain books from the law library. See Defs.' Mem., Ex. I, ~~ 11-12.
Perhaps the most significant restrictions are those depriving plaintiff of human contact. He must spend almost all of his time alone. Although death row houses seven other inmates, they are separated by at least two (and often many more) empty cells within the 44-unit pod. See PI.'s Mem., Ex. 15, at 69:8-24. Solid metal doors with no openings apart from small slits substantially impede any communication among death row inmates. See id. at Ex. 26 (Photograph of Cell Interior). In addition, plaintiff takes all three daily meals in his cell. Id. at Ex. 27, at 4. Visitation opportunities are limited to non-contact visits from immediate family members on weekends in a room with a glass partition, id. at Ex. 27, at 7, though in actuality no one ever comes, id. at Ex. 15, at 107:20-108:2. Thus, plaintiff's only regular source of human contact is prison officials, including those tasked with administering medical and mental health services in his cell. He is not allowed to join general population inmates for vocational, educational, or behavioral programming, nor is he allowed to attend group religious services. See id. at Ex. I, at 91:3-15.
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Capital offenders are automatically and permanently placed
in such restrictive conditions as a matter of policy -- contrary
to the practice for all other inmates in Virginia. Upon
entering the prison system, the latter are assigned an initial
security classification between level one (minimum risk) and
level five (maximum risk) by the virginia Department of
Corrections ("VOOC,,}.2 See id. at Ex. 3, at 30:11-20. This
classification is based on eight distinct factors, including an
individual's history of institutional violence, history of
escape attempts, and "other stability factors."l See id. at Ex.
7 ("Virginia Department of Corrections, Operating Procedure
830.2, Attachment 1"). Numerical values are attached to each
factor, the sum of which is the score used to determine the
level of risk. See id. at Ex. 2 ("Virginia Department of
Corrections, Operating Procedure 830.2"); see also id. at Ex. 3,
at 44:18-25 (describing the initial classification score as the
"primary" determinant of an inmate's risk level). Non-capital
2 An additional security level -- known as level "s" -- exists for certain inmates assigned to a segregated housing unit within a level-five facility. See PI.'s Mem., Ex. 1, at 46:18-25.
l The factors are published in the VOOC's "Scoring Guide" for the "Initial Offender Security Level Classification." They are as follows: (1) history of institutional violence, (2) severity of current offense, (3) prior offense history severity, (4) escape history, (5) length of time remaining to serve, (6) current age, (7) prior felony convictions, and (8) other stability factors. PI.'s Mem., Ex. 7.
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offenders are then placed in facilities commensurate with the

risk they present, though VOOC officials retain some override

authority in exceptional circumstances. See ide at Ex. 2, at 5.

These placements are subject to modification at any time for a

number of reasons. See ide at Ex. 2, at 6. In addition, the

VOOC conducts a classification review for each inmate on an

annual basis, providing an opportunity to move to a lower

security level. See ide at Ex. 8 ("Virginia Department of

Corrections, Operating Procedure 830.1").

Capital offenders, by contrast, receive no such initial

security classification. Instead, based on sentence alone, they

are automatically placed in restrictive conditions on death row

at SISP. Id. at Ex. 2, at 5 ("Any offender sentenced to Death

. . will be assigned directly to Death Row

.. ") . Only a

nominal classification is prepared for purposes of the prison

computer system, yielding a final score of "99" an arbitrary

value signifying an offender's capital status -- which

corresponds to security level "X." Id. at Ex. 2, at 5; ide at

Ex. 3, at 59:5-15. Capital offenders are never brought to a

reception center, nor are they evaluated using the multi-factor

scoring guide. See ide at Ex. 3, at 57:15-25. Thus, their

sentence conclusively determines their placement. Once a

capital offender arrives on death row, he remains there for as

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long as it takes to carry out his sentence, see id. at Ex. 2, at 5, in most cases more than six years. Capital offenders are ineligible for any subsequent classification review by the VOOC. Id. at Ex. 2, at 5 ("No reclassification will be completed."). In other words, their placement is permanent. The only exception is for a capital offender whose sentence is commuted or whose conviction is overturned, at which point he is reclassified pursuant to the usual review process. Defs.' Answer, ~ 5.
On October 24, 2012, plaintiff, initially proceeding pro se, brought a civil action under 42 U.S.C. § 1983 challenging his placement and continued confinement in the restrictive conditions on death row. See Compl. He named as defendants Harold C. Clarke, the Director of the VOOC, David Robinson, the Chief of Corrections Operations for the VOOC, and Eddie L. Pearson, the Chief Warden at SISP (collectively, "defendants").
Plaintiff's complaint made two particular allegations. First, he claimed that SISP's visitation policies, which prohibit virtually all contact visits for death row inmates, violated his rights under the Eighth Amendment. Second, he claimed that his automatic and permanent placement in the restrictive conditions of confinement prevailing on death row violated his rights under the Due Process Clause of the
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Fourteenth Amendment. Accordingly, plaintiff sought a declaration that defendants must provide him with additional outdoor recreation opportunities and an appropriate program for inmates not facing disciplinary measures.
On November 2, 2012, the Court issued a Memorandum Opinion and Order dismissing plaintiff's Eighth Amendment claim pursuant to 28 U.S.C. § 1915A(b) (1). See Mem. Op. & Order. Plaintiff appealed but ultimately failed to prosecute, resulting in a dismissal of the proceeding. See Prieto v. Clarke, No. 12-8025 (4th Cir. Feb. 6, 2013). Only his due process claim remains before the Court at this point in the litigation.
On January 25, 2013, defendants filed a Motion for Summary Judgment with respect to the remaining claim. Plaintiff, represented by pro bono counsel, opposed the motion as premature because he had not been given an opportunity to conduct discovery. Pl.'s Mem. Opposing Summ. J. & Requesting Disc. Pursuant to Fed. R. Civ. P. 56(d). The Court agreed with plaintiff, and issued an Order denying defendants' motion without prejudice. Order of Feb. 20, 2013. The parties then proceeded to conduct extensive discovery.
At the close of discovery, the parties filed the instant cross-motions for summary judgment. PI.'s Mot. for Summ. J.i Defs.' Mot. for Summ. J. In support of his motion, plaintiff
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argues that he has a constitutionally protected liberty interest in avoiding permanent assignment to his present conditions of confinement on death row. Plaintiff further argues that he was deprived of his liberty interest by the VOOC's automatic assignment process, which did not afford him notice of the reasons for his assignment or an opportunity to contest it. Accordingly, plaintiff seeks relief only in the form of an individualized classification determination using procedures that are the same or substantially similar to the procedures used for all non-capital offenders. He has indicated a belief that, if so classified, his score would render him eligible for assignment to a general population unit at a lower-security facility.
Conversely, in support of their cross-motion, defendants argue that the conditions in Virginia's death row are not sufficiently severe to implicate a protectable liberty interest in avoiding placement there. To the extent such an interest exists, defendants further argue that the existing classification system for capital offenders provides whatever minimal process may be due because plaintiff's interest in avoiding certain onerous conditions is dwarfed by defendants' interest in safe and efficient penal administration.
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II.

STANDARD OF REVIEW

Summary judgment is appropriate where the record

demonstrates "that there is no genuine dispute as to any

material fact and the [moving party] is entitled to judgment as

a matter of law." Fed. R. Civ. P. 56{a}. A genuine dispute of

material fact exists "if the evidence is such that a reasonable

jury could return a verdict for the nonmoving party." Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248 {1986}. The Court

must view the record in the light most favorable to the

nonmoving party, and must draw all reasonable inferences in its

favor as well, see Bryant v. Bell Atl. Md., Inc., 288 F.3d 124,

132 (4th Cir. 2002); however, "the mere existence of a scintilla

of evidence in support of" the nonmoving party's position is

insufficient, Anderson, 477 U.S. at 252; see also Othentec Ltd.

v. Phelan, 526 F.3d 135, 140 (4th Cir. 2008). Accordingly, to

survive a motion for summary judgment, "[t]he disputed facts

must be material to an issue necessary for the proper resolution

of the case, and the quality and quantity of the evidence

offered to create a question of fact must be adequate to support

a jury verdict." Thompson Everett, Inc. v. Nat'l Cable Adver.,

L.P., 57 F.3d 1317, 1323 (4th Cir. 1995) {citation omitted}.

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III.

DISCUSSION

The sole issue before the Court is whether plaintiff's

automatic and permanent placement in the restrictive conditions

of confinement prevailing in Virginia's death row violates his

Fourteenth Amendment due process rights. The analysis proceeds

in two parts, looking first at whether a liberty interest exists

and then at whether plaintiff was deprived of that interest

without sufficient procedural protections.

A. Protectable Liberty Interest The Fourteenth Amendment provides that no state shall

"deprive any person of life, liberty, or property, without due

process of law." It is well settled that due process

protections extend to inmates seeking to avoid certain

conditions of confinement, albeit in a circumscribed fashion,

the contours of which the Supreme Court has defined in two

seminal decisions.

In Sandin v. Conner, 515 U.S. 472 (1995), the Court

considered whether an inmate's placement in disciplinary

segregation for 30 days implicated a protectable liberty

interest. Id. at 486. Focusing on the nature of the alleged

deprivation, the Court held that no such interest arose for

three reasons: the inmate's "disciplinary segregation, with

insignificant exceptions, mirrored those conditions imposed upon

inmates in administrative segregation and protective custody";
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the inmate's segregation \\did not exceed similar, but totally discretionary, confinement in either duration or degree of restriction" i and the inmate's segregation did not \\ inevi tably affect the duration of his sentence." Id. at 486-87. The Court also explained that a limited liberty interest would arise in the event that an inmate's conditions "impose[] [an] atypical and significant hardship . . . in relation to the ordinary incidents of prison life." Id. at 484.
The Court returned to the due process issue in Wilkinson v. Austin, 545 U.S. 209 (2005). There, the Court considered whether an inmate's assignment to a maximum-security prison with "highly restrictive conditions" sufficed to create a liberty interest under the Sandin test. Id. at 213. The Court held that it did based in large measure on differences between the conditions at the maximum-security prison and "most [other] solitary confinement facilities." Id. at 224. At the former, inmates were denied virtually all sensory and environmental stimuli, as well as many basic forms of human contact. Id. at 214. The Court then identified two additional factors: "First is the duration. Unlike the 30-day placement in Sandin, placement at [the maximum-security prison] is indefinite and, after an initial 30-day review, is reviewed just annually. Second is that placement disqualifies an otherwise eligible
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inmate for parole consideration." Id. at 224. "While any of

these conditions standing alone might not be sufficient to

create a liberty interest," the Court concluded, "taken together

they impose an atypical and significant hardship within the

correctional context." Id.

Together, Sandin and Wilkinson conclusively establish that

segregated confinement can trigger due process protections in

certain circumstances. These decisions further establish that

"the touchstone of the inquiry into the existence of a

protected, state-created liberty interest in avoiding

restrictive conditions of confinement is . . the nature of

those conditions themselves in relation to the ordinary

incidents of prison life." Id. at 223 (internal quotation marks

and citation omitted). Only conditions that constitute an

"atypical and significant hardship" suffice. It is evident that

this inquiry is necessarily context-dependent and demands fact-

by-fact consideration. See, e.g., Farmer v. Kavanagh, 494 F.

Supp. 2d 345, 356 (D. Md. 2007) ("Wilkinson does not set forth a

checklist of factors, all of which must be present, to hold that

a protected liberty interest

exists, but instead directs

lower courts to consider the totality of circumstances in a

given facility.") .

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By its terms, the "atypical and significant hardship" test requires courts to first "identify [] the baseline from which to measure what is atypical and significant in any particular prison system." Wilkinson, 545 U.S. at 223. Although this threshold issue has caused considerable consternation in the circuit courts, see id. (acknowledging "the difficulty of locating the appropriate baseline" from which to measure but declining to "resolve the issue"), it is clear that the Fourth Circuit uses a facility's "general prison population" as the relevant baseline, see Beverati v. Smith, 120 F.3d 500, 504 (4th Cir. 1997). Here, that means the Court must look to the general population units at SISP, where Prieto would presumptively be placed but for his automatic separation as a consequence of his death sentence.
The "atypical and significant hardship" test then requires courts to perform a comparison to determine whether an inmate's confinement deviates sufficiently from the baseline. Consistent with this task, courts have considered whether the conditions in question are particularly extreme or restrictive, whether the duration of confinement is excessive or indefinite, whether an inmate's parole status is negatively affected, and whether an inmate's confinement in such conditions bears a rational relationship to legitimate penological interests. See, e.g.,
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Harden-Bey v. Rutter, 524 F.3d 789, 793 (6th Cir. 2008); Estate of DiMarco v. Wyo. Dep't of Corrs., 473 F.3d 1334, 1342 (lOth Cir. 2007); Skinner v. Cunningham, 430 F.3d 483, 487 (1st Cir. 2005). The Court will consider each of these factors in turn.
Plaintiff's conditions of confinement on death row are undeniably extreme and atypical of conditions in the general population units at SISP. He must remain alone in his cell for nearly 23 hours per day. See PI.'s Mem., Ex. 1, at 91:1-15. The lights never go out in his cell, although they are scaled back during the overnight hours. See id. at Ex. 15, at 57:1458:7. Plaintiff is allowed just five hours of outdoor recreation per week, id. at Ex. 27, at 6, and that time is spent in another cell at best slightly larger than his living quarters, id. at Ex. 1, at 92:1-19. He otherwise has no ability to catch a glimpse of the sky because the window in his cell is a window in name only. Id. at Ex. 26. Nor can he pass the time in the company of other inmates; plaintiff is deprived of most forms of human contact. See id. at Ex. 1, at 91:3-15. His only real break from the monotony owes to a television and compact disc player in his cell and limited interactions with prison officials. Such dehumanizing conditions are eerily reminiscent of those at the maximum-security prison in Wilkinson. See 545 u.S. at 214. More importantly, the conditions on death row are
14

a good deal more restrictive than those experienced by general population inmates at SISP.
Conditions for the latter group -- the baseline from which to measure in this instance -- differ in almost every meaningful respect. First, general population inmates spend substantial time every day out of the confines of their cells. For example, they are given approximately 80 minutes of outdoor recreation four or five days per week, and they have access to the open prison yard, complete with a jogging track and basketball courts. See Pl.'s Mem., Ex. 15, at 28:24-29:18. Second, general population inmates enjoy the near-constant company of others. They receive additional "in-pod recreation" time, during which they may socialize and play games together in a common area. See id. at Ex. 15, at 34:15-25. This is to say nothing of the benefits of two communal meals per day, regular contact visits from family and friends, and group religious and educational programming. In other words, the experience for general population inmates at SISP is hardly a solitary one.
Comparing these conditions to plaintiff's experience, see Beverati, 120 F.3d at 504, leads the Court to conclude that the conditions on death row are uniquely severe. Whereas general population inmates are subject to a difficult but ultimately social existence, death row inmates like plaintiff are denied
15

all freedom of movement and most freedom to interact with others. There can be no dispute that "almost every aspect" of a death row inmate's life "is controlled and monitored." Wilkinson, 545 U.S. at 214. It is true that plaintiff is not deprived of all environmental and sensory stimuli or human contact. Cf. id. ("It is fair to say OSP inmates are deprived of almost any environmental or sensory stimuli and of almost all human contact."). He is allowed to have a television and compact disc player in his cell, and he may have certain books delivered from the law library. See Defs.' Mem., Ex. 1, ~~ 1112. Plaintiff also has occasional contact with guards and other prison officials administering health services. But these rudimentary privileges do not mitigate the overwhelming fact of isolation -- plaintiff is left alone in a small cell for nearly every hour of every day.
The Court likewise finds it significant that plaintiff has already spent five years in this placement, and there is no end in sight. Plaintiff has not even begun federal post-conviction proceedings, which are likely to play out over the course of several years and further delay the carrying out of his sentence. 4 For all practical purposes, his placement "is for an
4 Plaintiff filed a petition for a writ of habeas corpus in state court, which was denied by the Virginia Supreme Court on September 12, 2013. See Prieto v. Warden of the Sussex I State
16

indefinite period of time," just as in Wilkinson. 545 u.s. at
214-15. The Court also finds it unreasonable that the VOOC refuses
to afford plaintiff any classification review as a matter of policy in the meantime. Pl.'s Mem., Ex. 2, at 5; cf. Wilkinson, 545 U.S. at 224 ("Unlike the 30-day placement in Sandin, placement at OSP is indefinite and, after an initial 30-day review, is reviewed just annually."). Defendants do not dispute this fact. The VOOC's no-review policy guarantees that plaintiff will ultimately remain in his current conditions for a period of years. See Defs.' Mem. 19 (noting that most death row inmates are confined for "between 6-9 years"). Thus, on its own, the excessive duration here weighs strongly in favor of finding that a cognizable liberty interest exists. Cf. Marion v. Columbia Corr. Inst., 559 F.3d 693, 699 (7th Cir. 2009) ("[O]ther courts of appeals have held that periods of confinement that approach or exceed one year may trigger a cognizable liberty interest without any [specific] reference to conditions.") .
Plaintiff's indefinite, long-term confinement in severe conditions is even more weighty when compared to the duration of confinement for general population inmates placed in
Prison, 748 S.E.2d 94 (Va. 2013). Plaintiff has not yet pursued federal habeas relief.
17

administrative or disciplinary segregation. All inmates at SISP may be placed in segregation for an interval of time in which they experience conditions virtually identical to those on death row. PI.'s Mem., Ex. 6 ("Virginia Department of Corrections, Operating Procedure 861.3"), at 12. As such, occasional confinement in restrictive conditions is an "ordinary incident of prison life" at SISP. See Wilkinson, 545 U.S. at 223. The important difference is that the length of that interval is strictly limited for non-capital offenders. Inmates "may be assigned to Disciplinary Segregation for a maximum period of 30 days for each major rule violation." PI.'s Mem., Ex. 6, at 12. In addition, those inmates receive a status review within 72 hours of arrival, and every 30 days thereafter in the event of an extended placement for multiple violations. See id., Ex. 15, at 137:20-138:12. By contrast, plaintiff has not been granted a single review in five years, nor will he ever get one without a change in policy. While other inmates can be sure that they will be considered for reassignment to a general population unit on a defined scheduled, plaintiff has no such hope. In the end, he could go a decade or more without any opportunity to object to his restrictive conditions of confinement or otherwise be heard on the matter.
18

Finally, the Court finds that the nature of plaintiff's confinement furthers few, if any, legitimate penological goals. See DiMarco, 473 F.3d at 1342 (considering whether "the segregation relates to and furthers a legitimate penological interest"); Skinner, 430 F.3d at 486 (considering whether an inmate's segregation "was rational"). For starters, it bears no clear relationship to any of the valid punitive, protective, or investigative goals that justify temporarily placing general population inmates in similar conditions. See Sandin, 515 U.S. at 485-86 (suggesting that most disciplinary segregation does not implicate a protectable liberty interest because discipline is to be expected in the prison context). Plaintiff has been by all accounts a model prisoner. Pl.'s Mem., Ex. 4, at 100:25101:6; id. at Ex. 19, at 109:15-18. He has not engaged in any of the behaviors that would normally support placement in segregated confinement.
Nor is plaintiff's confinement well calibrated to further legitimate safety- and resource-related goals. The VOOC's policy toward death row inmates largely rests on two fundamental assumptions: first, that these inmates inherently present a greater risk to prison safety because they "have nothing to lose," and second, that they are less deserving of limited prison resources because they will never reenter society. See,
19

~, id. at Ex. I, at 93:5-13; id. at Ex. 4, at 63:19; Defs.' Mem., Ex. 2, at 28:14-29:21. Neither assumption finds much support in the record. Death row inmates have obvious incentives to behave well and take rehabilitation seriously, including the possibility that new forensic evidence might undercut a conviction, a habeas petition might be granted, or that good behavior might improve the prospects of a commuted sentence. See Pl.'s Mem., Ex. I, at 76:9-21.
These assumptions are also inconsistent with VOOC practices. Compare the treatment of inmates sentenced to death and those sentenced to life imprisonment without the possibility of parole. Although the VOOC's stated reasons for separating death row inmates and denying them programming apply with equal force to both classes, inmates serving life sentences are presumptively assigned to the general population units at SISP, where they may avail themselves of limited programming. In any event, the presence of legitimate safety concerns "does not diminish" plaintiff's liberty interest in avoiding particularly harsh conditions. See Wilkinson, 545 U.S. at 224 ("OSP's harsh conditions may well be necessary and appropriate in light of the danger that high-risk inmates pose both to prison officials and to other prisoners. That necessity, however, does not diminish
20

our conclusion that the conditions give rise to a liberty interest in their avoidance." (citation omitted».
For these reasons, the Court concludes that plaintiff's conditions of confinement "taken together [] impose an atypical and significant hardship within the correctional context." Wilkinson, 545 U.S. at 224.
Defendants contend that Sandin and Wilkinson dictate a different outcome here. They view those cases as establishing an exclusive list of three necessary factors that bear on the liberty interest analysis, see Defs.' Mem. 9, two of which have been discussed above -- the degree of restriction and duration. The third factor is whether placement in the challenged conditions of confinement "disqualifies an otherwise eligible inmate for parole consideration." Wilkinson, 545 U.S. at 224. Plaintiff clearly has not been eligible for parole at any point and therefore has not had his sentence lengthened by his current placement. But defendants are wrong to suggest that this factor standing alone is dispositive under Sandin and Wilkinson. The "atypical and significant hardship" test is not so rigid; rather, the Supreme Court indicated that lower courts ought to consider the cumulative effect of several relevant factors. See, e.g., Ramirez v. Galaza, 334 F.3d 850, 861 (9th Cir. 2003) (noting that the standard requires "case by case, fact by fact
21

consideration"); Farmer, 494 F. Supp. 2d at 356 (noting that Wilkinson "directs lower courts to consider the totality of circumstances in a given facility"). To read Sandin and Wilkinson any more narrowly would cabin those decisions to their facts. See Westefer v. Snyder, 422 F.3d 570, 590 (7th Cir. 2005) ("Illinois' contention that the liberty interest identified in Wilkinson turned exclusively on the absence of parole constitutes . . . far too crabbed a reading of the decision.") .
Moreover, the appropriate baseline in this case is not the conditions at the Ha1awa Correctional Facility (Sandin) or the Ohio State Penitentiary (Wilkinson). To the contrary, plaintiff's conditions of confinement must be compared to the conditions experienced by general population inmates at SISP. Beverati, 120 F.3d at 504; see Wilkinson, 545 U.S. at 223 (describing the "touchstone of the inquiry" as "the nature of [the challenged] conditions themselves in relation to the ordinary incidents of prison life" (emphasis added». On that score, the Court finds that the severity of the conditions on death row, the excessive duration of plaintiff's confinement in such conditions, and minimal legitimate penological justification outweigh the absence of negative parole effects, and impose an "atypical and significant hardship" on plaintiff.
22

Accordingly, plaintiff has a protectable liberty interest in
avoiding his current placement.
B. Process Due Having found that a liberty interest exists, the next
question is what process plaintiff is due before he may be
placed in such conditions of confinement. Wilkinson, 545 U.S.
at 224. It is important to bear in mind that plaintiff's
constitutional rights are not violated by the imposition of the
above-described hardship itself, but by the imposition of that
hardship without sufficient procedural protections.
At this step in the analysis, the Court must employ the
familiar framework established in Mathews v. Eldridge, 424 U.S.
319 (1976). See Wilkinson, 545 U.S. at 224-25. The Mathews
framework provides three components for courts to consider:
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. (quoting Mathews, 424 U.S. at 335).
In the prison context, the Supreme Court has further held
that due process is satisfied by providing "notice of the
factual basis" for an inmate's placement and "allowing the
inmate a rebuttal opportunity." Id. at 226 (describing notice 23

and a fair opportunity to respond as "among the most important procedural mechanisms for purposes of avoiding erroneous deprivations"). This modest requirement -- "informal, nonadversary procedures" -- reflects an inmate's "limited" interest in avoiding erroneous placement in unusually restrictive conditions and the state's "dominant" interest in ensuring the safety of guards and inmates alike, maintaining prison security, and preserving scarce resources. Id. at 226-
27.
Setting aside the parties' competing interests, the Court finds that the VDOC's automatic placement policy for capital offenders fails to provide even the most basic procedural protections. Plaintiff did not receive advance notice of the factual basis leading to his placement in segregated confinement, nor did he receive an opportunity to contest it. Cf. id. Instead, he was shuttled directly to death row at SISP, bypassing the initial security classification process followed for all other inmates (and its attendant safeguards). See Pl.'s Mem., Ex. 2, at 5 ("Any of fender sentenced to Death will be assigned directly to Death Row . . . . "). In other words, plaintiff was afforded no before-the-fact process at all. Defendants concede as much. Defs.' Resp. to Pl.'s Mot. for Summ. J. [hereinafter "Defs.' Resp."] 12 ("Plaintiff is
24

classified as a death row offender simply by the existence of a court order imposing the penalty of death."}. The automatic nature of the VOOC's assignment policy in fact guarantees that prison officials have no ability to provide a reasoned explanation of placement decisions or discretion to consider an inmate's rebuttal.
Likewise, the permanent nature of that policy forecloses any after-the-fact process. Cf. Skinner, 430 F.3d at 486 ("Due process, even where it is due, does not invariably mean process before the fact."). Plaintiff has had no subsequent opportunity to contest his placement because classification review is not available to capital offenders on any basis. PI.'s Mem., Ex. 2, at 5 ("No reclassification will be completed."). The aggregate effect is that plaintiff is deprived of safeguards against erroneous placement in conditions that are more restrictive than necessary by virtue of his sentence alone. He has no forum in which to argue that he belongs in conditions more akin to those experienced by general population inmates at his maximumsecurity facility. Clearly, defendants have not provided even "informal, nonadversary procedures" in this instance. See Wilkinson, 545 U.S. at 226-27. The Court therefore concludes that defendants have failed to comply with the demands of due process.
25

Defendants respond with a variety of counterarguments, none of which are persuasive. First, it is no answer that plaintiff's conviction for a capital offense ensures that he is properly placed on death row. See Defs.' Resp. 13 ("Given that the death sentenced offenders all are placed on death row, there is essentially no risk of error of an erroneous placement. The order from the sentencing court either sentences the defendant to death or it does not."). Defendants fail to distinguish among the multiple deprivations at play here. Plaintiff undoubtedly received process in the Virginia state courts before he was removed from free society; he does not argue otherwise. Instead, plaintiff challenges only the additional deprivation that occurred when he was placed in segregated confinement, a severe form of imprisonment usually reserved for problematic inmates or those with special needs. ef. Wilkinson, 545 U.S. at 225 ("Prisoners held in lawful confinement have their liberty curtailed by definition, so the procedural protections to which they are entitled are more limited than in cases where the right at stake is the right to be free from confinement at all."). For the latter deprivation, plaintiff has received no process at all pursuant to vooe policy, as explained above.
It is similarly no answer to suggest that process in the form of classification review for plaintiff would be futile.
26

See Defs.' Resp. 12-13 (claiming that capital offenders would be assigned to the most restrictive conditions of confinement in any event). There is no futility exception to the Due Process Clause. Regardless of whether plaintiff would in fact be eligible for placement in less-restrictive conditions or a lower-security facility, it is the evaluative process itself that vindicates his constitutional rights.
The Court's limited ruling leaves defendants with multiple options going forward. First, defendants could provide plaintiff with an individualized classification determination using procedures that are the same or substantially similar to the procedures used for all non-capital offenders, as plaintiff requests. Doing so would likely comport with the minimal due process requirements described in Wilkinson. 545 U.S. at 22627. Second, defendants could vary the basic conditions of confinement on death row, if only slightly, such that confinement there would no longer impose an atypical and significant hardship on plaintiff. Either way, the Court's ruling does not necessarily entail a wholesale shift in Virginia's penal policy. The cost of compliance is limited by the very small class of affected inmates.
27

IV.

CONCLUSION

For the reasons stated above, Plaintiff's Motion for

Summary Judgment will be granted and the Motion for Summary

Judgment by defendants will be denied by an appropriate Order to

be issued with this Memorandum Opinion. 't!J-
Entered this ~ day of November, 2013.

Alexandria, Virginia

Leonie M. Brinkema United States District Judge

28

 
 Case 1:12-cv-01199-LMB-IDD Document 92 Filed 11/12/13 Page 1 of 2 PageID# 2026

IN THE UNITED STATES DISTRICT COURT FOR EASTERN DISTRICT OF VIRGINIA

Alexandria Division

ALFREDO PRIETO,

)

)

NOV I 2

Plaintiff,

)

)

v.

)

1 , 12cvl199 (LMB/IDD)

)

HAROLD C . CLARKE, et al . ,

)

)

Defendants.

)

-,
~. tT
\

ORDER

For the reasons stated in the accompanying Memorandum Opinion,

Plaintiff's Motion for Summary Judgment [Okt. No. 74] is GRANTED,

the Motion for Summary Judgment by defendants [Dkt. No. 79) is DENIED,

and it is hereby

ORDERED that judgment be and is entered in favor of plaintiff;

and it is further

ORDERED, ADJUDGED, and DECREED that the Virginia Department of

Corrections I automatic and permanent placement of plaintiff in

highly restrictive conditions of confinement violates the Due

Process Clause of the Fourteenth Amendment; and it is further

ORDERED, ADJUDGED, and DECREED that defendants provide

plaintiff with an individualized classification determination using

procedures that are the same or substantially similar to the

procedures used for all non-capital offenders, and/or that

Case 1:12-cv-01199-LMB-IDD Document 92 Filed 11/12/13 Page 2 of 2 PageID# 2027

defendants improve plaintiff's conditions of confinement such that

the confinement does not impose an atypical and significant hardship.

The Clerk is directed to enter judgment in favor of plaintiff

pursuant to Fed. R. Civ. P. 58 and to forward copies of this Order

and the accompanying Memorandum Opinion to counsel of record.

Entered this

I~

~
day

of

November,

2013.

Alexandria, Virginia

Leonie M. Brinkeffia United States District Judge

2

 
 Case 1:12-cv-01199-LMB-IDD Document 93 Filed 11/13/13 Page 1 of 1 PageID# 2028

IN TH E UNIT ED STATES DISTI{l CT CO URT

FOR T1·IE EAST ERN DI STRI C r O F VIR G INIA

u I3

Alex<llldria Uivi sion

L- -

Alfredo Pr ieto Pl ai nlilT
v.

)

)

)

)

C iv i l ACI iO Il No. I : J 2eV I I l)LJ

)

Harold C. Clarke, cl al.

)

Dcfcndan l

)

)

1
.r
--'---.i

J UDG MENT Pursua nt [0 the orde r of th is COliflel11Cred on Novc mhcr 12. 21l1 3. and ill acco rdance with Fdc ra] Rules of Civil Procedure 50S. J UDG MENT is he rcoy entered in fa vor of lhe Plaintiff, Alfredo Prieto and against Ihe De fendams. I l aroid C. Clarke, J\. O,lv id Rob ins(lll
and E. Pearson.

Al exandr ia. Virgin ia Nove mhe r 13. 20 13

FERNAN DO GA LI NDO. CLERK
I3Y:_'_--f\"~, _,' _L_~_ ____
Deputy Clerk

 
 Case 1:12-cv-01199-LMB-IDD Document 3 Filed 11/02/12 Page 1 of 7 PageID# 169

IN THE UN IT ED STATES DISTRI CT COU RT FOR THE EASTERN DISTRICT OF VIRGINIA

Alexa ndria Divis ion

Alfredo Prieto, Plaintiff,
\'.
Harold Clarke, ct!!1.
Dcfcnd ~lJlt s.

)

)

)

)

1:l2c\'1199 (LMB/IDD)

)

)

)

I~OV - 2 I'

MEMORANDUM OP IN ION AND OR DER
Alfredo Prieto, a Virginia inmate proceeding J2[Q sc, has filed a civil ri ghts action ,
pursuant to 42 U.S .C. § 1983 , nllcgillg that the visitation policy at Sussex I State Pri son
constitutes cruel and unusua l puni shmen t, and that hi s confinement in a spec ial hous ing unit
violates his right \0 due process and constitutes cruel and unusual punishment. After reviewi ng
plaintiffs co mplaint, the claim against defendan ts conce rnin g the visitation policy must be
dism issed pursuant to 28 U.S.C. § 19 15A(b)( I) for failure to state a claim for which relief can be
granted .! However, p iainliffhas sta ted a cla illlihat hi s due process rights have been viola ted by
his indefinite placement in a spec ial housin g unit.
1 Section 19 15A provides: (a) Sc rccn in g.- The court sha ll review, before docketing, if feasib le or, in any event, as soon as practicable afte r docketing, a compla int in a civil action in whi ch a prisoner seeks redress froIll a gove rnmental entity or officer or employee of a govenunenta l entit y.
(b) Grounds for dismissal.- On review, the CO llrt s hall ident ify cognizable claims or di smiss the co mpl aint, or any po rti on o r the comp laint, if the complaint-
(I) is frivolous , malicious, or fail s to state a cla im upon whic h relief can be granteci ; or (2) seeks mone tary relie f from a ciefendant who is imlll une from suc h relicI'.

Case 1:12-cv-01199-LMB-IDD Document 3 Filed 11/02/12 Page 2 of 7 PageID# 170
I. Background Plaintiff is a death row inmate at Sussex I State Prison. CompI. 5. He alleges that the prison's policy permitting death row inmates to receive visitors from only immediate family members violates his constitutional rights and constitutes cruel and unusual punishment. Id. He also claims that his right to due process is being violated by his placement in "special housing confinement." Id. at unnumbered page 1. He claims that he has not received a disciplinary violation and is not a "valid security risk" and that keeping him in a six foot by sixteen foot "single cage" is cruel is unusual punishment. Id. Plaintiff attached to the complaint copies of several informal complaints and grievances that he filed at Sussex I. In response to an informal complaint he filed on July 24,2012, a Sussex I employee wrote that plaintiffs "special housing confinement was determined by the judicial system." Att. 1 at 15, ECF No. I-I.
II. Standard of Review In reviewing a complaint pursuant to § 1915A, a court must dismiss a prisoner complaint that is frivolous, malicious, or fails to state a claim upon which relief can be granted. 28 U.S.C. § 1915A(b)(1). Whether a complaint states a claim upon which relief can be granted is determined by "the familiar standard for a motion to dismiss under Fed. R. Civ. P. 12(b)(6)." Sumner v. Tucker, 9 F. Supp. 2d 641, 642 (E.D. Va. 1998). Thus, the alleged facts are presumed true, and the complaint should be dismissed only when "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). To survive a 12(b)(6) motion, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. ---, ---,129 S. Ct. 1937,1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007». "A claim has facial plausibility when the plaintiff pleads
2

Case 1:12-cv-01199-LMB-IDD Document 3 Filed 11/02/12 Page 3 of 7 PageID# 171
factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. However, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice" to meet this standard, id., and a plaintiffs "[f]actual allegations must be enough to raise a right to relief above the speculative level ...". Twombly, 550 U.S. at 55. Moreover, a court "is not bound to accept as true a legal conclusion couched as a factual allegation." Iqbal, 129 S. Ct. at 1949-50.
III. Analysis To establish a claim for cruel and unusual punishment due to conditions of confinement that violate the Eighth Amendment, a plaintiff must allege facts sufficient to show (1) an objectively serious deprivation of a basic human need-that is, one causing serious physical or emotional injury-and (2) that prison officials were deliberately indifferent to that need. Farmer v. Brennan, 511 U.S. 825, 834 (1994); Wilson v. Seiter, 501 U.S. 294,198 (1991). To meet the first prong, plaintiff must allege facts sufficient to show that the condition complained of was a "sufficiently serious" deprivation of a basic human need. Farmer, 511 U.S. at 834) (citing Wilson, 501 U.S. at 298). Only extreme deprivations will make out an Eighth Amendment claim, and it is plaintiffs burden to allege facts sufficient to show that the risk from the conditions of his confinement was so grave that it violated contemporary notions of decency and resulted in serious or significant physical or emotional injury. Hudson v. McMillian, 503 U.S. I, 8 (1992); Strickler v. Waters, 989 F.2d 1375, 1379-81 (4th Cir. 1993). To meet the second prong, plaintiff must allege facts sufficient to show that defendants were deliberately indifferent, that is, that they knew of facts from which an inference could be drawn that a "substantial risk of serious harm," was posed to his health and safety, that they drew that inference, and then disregarded the risk posed. Farmer, 511 U.S. at 837.
3

Case 1:12-cv-01199-LMB-IDD Document 3 Filed 11/02/12 Page 4 of 7 PageID# 172
Claims ofcruel and unusual punishment that concern the deprivation of liberty interests must be reviewed according to the principles of Sandin v. Conner, 515 U.S. 472 (1995). Confinement does not strip inmates of all liberty interests, and the due process clause of the Fourteenth Amendment mandates procedural safeguards before an inmate can be punished by conditions so dramatically different from the basic range of constraints contemplated by his sentence. Id. at 483-84. However, such liberty interests "will generally be limited to the freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause by its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id. at 484. On the other hand, the protections of the due process clause do not attach unless the plaintiff was deprived of such a liberty interest. Lekas v. Briley, 405 F.3d 602,607 (7th eir. 2005).
A. Visitation Plaintiffs claim regarding his visitation rights fails to meet the first prong of the test for cruel and unusual punishment. The right to visitation privileges with extended family and friends is not a basic human need, and it is well established that a prisoner has no direct constitutional right to visitation. See,~, Kentucky Dept. of Corrections v. Thompson, 490 U. S. 454, 460-61 (1989) ("The denial of prison access to a particular visitor is well within the terms of confinement ordinarily contemplated by a prison sentence, therefore is not independently protected by the Due Process Clause."). Furthermore, courts that have analyzed inmates' entitlement to visitation under the Sandin principles also have concluded that there exists no liberty interest in visitation while incarcerated which is adequate to trigger the due process protections of the Fourteenth Amendment. See,~, Stevens v. Robles, 2008 WL
4

Case 1:12-cv-01199-LMB-IDD Document 3 Filed 11/02/12 Page 5 of 7 PageID# 173
667407 at **6-7 (S.D. Cal. Mar. 7, 2008) (prisoners have no right to family visits, either independently protected by the Due Process Clause or as a liberty interest created by state laws or regulations), and cases cited. Therefore, plaintiff has failed to state a claim for which § 1983 relief can be granted.
B. Housing Placement
Plaintiffs claim regarding his housing placement also fails to meet the first prong of the test for cruel and unusual punishment. He does not assert that the decision about his housing placement affects a basic human need, and he does not claim to have any injury from being in the segregated housing unit. Alleging that the fact alone of his confinement to the segregated housing unit constitutes cruel and unusual punishment, without injury, is insufficient. See Sweet v. South Carolina Dep't. of Corrections, 529 F.2d 854, 861 (4th Cir. 1975) C'''[I]solation from companionship,' 'restriction on intellectual stimulation and prolonged inactivit' inescapable accompaniments of segregated confinement, will not render segregated confinement unconstitutional absent other illegitimate deprivations ...").
However, plaintiff has sufficiently stated a claim that his placement in a special housing unit violates his due process rights. When a defendant is lawfully convicted and confined to jail, he loses a significant interest in his liberty for the period of that sentence. Gaston v. Taylor, 946 F.2d 340, 343 (4th Cir. 1991). Nonetheless, when applying the Sandin principles to plaintiffs claim, plaintiffs indefinite confinement in a restrictive housing unit amounts to an "atypical and significant hardship ... in relation to the ordinary incidents of prison life," and warrants constitutional protection. Sandin, 515 U.S. at 484. While a thirty-day placement in disciplinary segregation in Sandin did not implicate a liberty interest, the Supreme Court has held that an indefinite placement in highly restrictive conditions suffices to implicate such an interest.
5

Case 1:12-cv-01199-LMB-IDD Document 3 Filed 11/02/12 Page 6 of 7 PageID# 174
Wilkinson v. Austin, 545 U.S. 209,213,224 (2005); see also Harden-Bey v. Rutter, 524 F.3d 789, 793 (6th Cir. 2008) (holding that the duration of restrictive segregation bears on whether a cognizable liberty interest exists). Because plaintiff alleges that he has been in a special housing unit for several years without the right to due process protections, he has stated a claim upon which relief could be granted.
IV. Motion to Proceed In Forma Pauperis Plaintiff has applied to proceed in forma pauperis in this action; however, to determine whether plaintiff qualifies to proceed in forma pauperis, the Court directs plaintiffs correctional institution to provide additional information.
Accordingly, it is hereby ORDERED that plaintiffs claim regarding Sussex I State Prison's visitation policy be and is DISMISSED WITH PREJUDICE for failure to state a claim, pursuant to 28 U.S.C. § 1915A(b)(1); and it is further ORDERED that plaintiffs request to proceed in forma pauperis is conditionally granted to the extent that plaintiff need not prepay the filing fee at this time. Plaintiff is directed to sign and return the attached Consent Form within thirty (30) days from the date of this Order. If the Court grants plaintiff in forma pauperis status, he will be required to pay the filing fee in installments after first paying an initial filing fee; and it is further ORDERED that the Clerk request plaintiffs institution to provide an Inmate Account Report Form on plaintiff within thirty (30) days of the date of this Order; and it is further ORDERED that plaintiffs failure to comply with any part of this Order within THIRTY (30) DAYS FROM THE DATE OF THIS ORDER, or failure to notify this Court immediately in
6

Case 1:12-cv-01199-LMB-IDD Document 3 Filed 11/02/12 Page 7 of 7 PageID# 175

the event he is transferred , released, or otherwise relocated, may result in the dismissa l of this complai nt pursuant to Fed. R. Civ. P. 4 1(b).

To appeal , plaintifTmust file a written notice of appea l with the Clerk's Office w ithin thirty (30) days or the date of thi s Order. See Feci. R. App. P. 4(a). A written notice of appeal is a short statement stating a desire to appeal thi s Order and noting the date of the Order plaintiff wants to appea l. Pl aintiffneed not explain the grounds rorappeal until so directed by the COllrt.

The Clerk is directed 10 send a copy or thi s O rder and a Conse nt Form 10 plaintirf, as well as a copy or thi s Order and the Inmate Account Repo rt Form to plaintirrs curren t instituti on of confinement .

d..DJ2 Entered this

IV day or ~~

A lexandria, Virginia

2012.
~~ ., . lsI
Lco nle M. Bnnkcma Uni ted Stu tes Di s trict Judge

7

 
 Case 1:12-cv-01199-LMB-IDD Document 40 Filed 02/06/13 Page 1 of 1 PageID# 287
FILED: February 6, 2013 UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT ___________________ No. 12-8025
(1:12-cv-01199-LMB-IDD) ___________________
ALFREDO PRIETO Plaintiff - Appellant
v. HAROLD C. CLARKE, Director; A. DAVID ROBINSON, Deputy Director; E. PEARSON, Warden
Defendants - Appellees ___________________ O R D E R ___________________
The court dismisses this proceeding for failure to prosecute pursuant to Local Rule 45.
For the Court--By Direction /s/ Patricia S. Connor, Clerk

 
 CaseC1a:s1e2-1c:1v2-0-c1v1-9091-1L9M9-BL-MIDBD-IDDDocDuomcuemnte4n3t 1 FiFleilded021/01/254/1/132 PPaaggee 11ooff 99 PPaaggeelIDD## ,'3e.n1,7..'<.-4L.1"\':0)." •

~ ~ ~ IL IE OCT L 4 2012

IN THE UNITED STATES DISTRICT COURT CLE~S. DISTRICT COURI'

EASTERN DISTRICT OF VIRGINIA

NDRtA VIRGINIA

COMPLAINT UNDER CIVIL RIGHTS ACT 42 U.S.C. § 1983

I Action Number ~ I :l.c. \I,JI

(To be ,,,,,UN br 'Ilt CI

. DI~o",,)

"1:0 ~

Please fiU out this complaint fonn completely. The Court needs the information ~te~

order to assure that your complaint is processed as quickly as possible and that allB\!§ clams

are addressed. Please print/write legibly or type.

~»U->' Ui

• :;:0

I. PARTIES

<_C:'-> -un
:;:0-1

-""'1
r
rt1
o

A. Plaintiff:

~g i9

-~c~

N <.n

1.

13q/~

(Inmate number)

. .
waVe~ ldr~a. .2."3 S''11

Plaintiff MUST keep the Clerk of Court notified of any change of address due to transfer or release. If plaintiff faUs to keep the Clerk Informed of such changes, this action may be dismissed.

Plaintiff is advised that only persons acting under the color of state law are proper defendants under Section 1983. The Commonwealth of Virginia is immune under the Eleventh AmendmenL Private parties such as attorneys ond otber inmates may Dot be sued under SeCtion 1983. In additloD, Uabillty under Section 1983 requires personal action by the deCendunt that caused you harm. Normally, tbe Director of the Department of Corrections, wllrdens, and sberlffs are not Dable under Section 1983 when a clnlm against them rests solely on the fact that they supervise persons who may have violated your rlgbts. In addition, prisons, JailS, and departments within an Institution are not persons under Section 1983.

B. Oefendant(5):

1. (a) HaroldC.CLa rK (Name)

(b) .Dr r£c:rar (Title/Job Description)

(c) 1001 Qb,C; INdustria B1vdSu,11: F

(Address)
QUFfOIK.

0~o{Ia•.

43 LI3~/-5J.j8o.;!r;~"-R~-'~-r:r-r:--((:!.:..~Ir~-...P!_ . ~'q'_ -~f~i.;~/n-i~!l

: LI ocr I 72012 JLb'

2 Crlevance

f

-.J

CLERK, U.S. DISTRICT COURT

RICHMOND, VA

Case 1:12-cv-01199-LMB-IDD Document 43 Filed 02/15/13 Page 2 of 9 PageID# 318 Case 1: 12-cv-01199-LMB-IDD Document 1 Filed 10/24/12 Page 2 of 9 PagelD# 2
I.

._1i .'

.: •.

.........;..•..•..0.'. :

.:,.:.:0

IN THE UNtTED STATES DISTRICT COURT EASTERN DISTRICf OF VIRGINIA

INSTRUCfIONS FOR FILING COMPLAL~1' BY PIUSONER UNDER CIVIl. RIGHTS ACT, 41 U.S.C. § 1983

1. This complaint must be legibly handwritten or typewritten and signed by the plaintiff. Any false statement ofmaterial fact may serve as the basis for prosecution and conviction for pequry. All questions must be answered concisely in the proper space on the fonn.
2. This packet includes three (3) copies of a complaint Conn and one (1) copy of an in forma pauperis affidavit.
3. In order for this complaint to be filed. it must be accompanied by the filing fee of $350.00 (28 U.S.C. § 1914(a». Ifyou do Dot have the necessary filing fee, you may request pennission to proceed in/anna pauperis. Please complete the enclosed affidavit setting forth information establishing your inability to prepay the fees and costs.
4. Wben these forms are complete.lhey must be mailed to the Clerk of the United States District Court for the Eastern District of Virginia. The address is listed below:
United States District Court Eastern District ofVirginia
701 East Broad Street Suite 3000
Richmond, Vllginia 23219·3528
s. Complainu that do not confonn to these instructions will be returned with a notation as
to the deficiency.
6. ALL COPIES OF TB~ COMPLAINT ~WST BE IDENTICAL. DO NOT MAIL THE FORMS TO A SPECIFIC JUDGE.

Crievance

CaseC1a:s1e2-1c:1v2-0-c1v1-9091-1L9M9-BL-MIDBD-IDDDocDuomcuemnte4n3t 1 FiFleilded021/01/254/1/132 PPaaggee33ooff99 PPaaggeeIlDD## 3319

rm 2. (.j A Dav/d bIftISaIII. (Name)

(b)dEPWr ])J:rEc:taY' (Tit fJob Descnpllon)

(c) 1001 Db'le; iNdUSTrial I3lvd SUITE: F (Address)

SufFolK, VrYU·,nlia. d.3H3l/- 5lfgO

3. (a) E. PEtlrSoAl

(b) WflrdEJJ .

(Name)

,

(Title/Job Description)

Ot/.$$e}($- S'nL/EATISON

(e) d.Jf'lJJ1Allusss.whro: !Dr/VF

(Address)

waf/Erl..YJ ~ .;z3 f/'11

If there are additional defendants, please list them on a separate sheet of paper. Provide all identifying information for each defendant named.

Plaintiff MUST provide a physical address for defendant(s) In order for tbe Court to serve tbe complaint. If plaintiff does not provide a physical address for n defendant, that person may be dismissed as a party to this action.

II. PREVIOUS LAWSUITS

A. Have you ever begun other lawsuits in any state or federal courl relating to your
imprisonment? Yes ( J No [ J
B. If your answer to "A" is Yes: You must describe any lawsuit, whether cUlTently pending or closed, in the space below. If there is more than one lawsuit, you must describe each lawsuit on another sheet of paper, using the same outline, and attach hereto.

I. Parties to previous lawsuit: PlaintifQs} _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

Defendanl(S) _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

2. Coun (if federal court, name the district; if state court, name the county):

3. Dale lawsuit filed: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

4. Docket number:

3
Grievance

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s. N'nmc of Judge to whom case was assigned: _ _ _ _ _ _ _ _ _ _ __
6. Disposition (Was case dismissed? Appealed? Is it still pending? What relief was granted. ifany?) :

III. GRIEVANCE PROCEDURE A. At what institution did the events concerning your current complaint take place: _ __

B. Does the institution listed in "An have a grievance procedure? Yes I><J No [

C. Ifyour answer to "8" is Yes:

I. Did you file a grievance based on this complaint? Yes [><3 No [ J

2.

s." Ifso, where and when: Sll<)5E>t;l.

~-I-,JOI/, 3-14-11,

3. What was the result? I..Llu.WJl.J:,A;Io:au.uu.MK.We:A:t::;e;,",d~._ _ _ _ _ _ _ _ _ __

4. Did you appeal? Yes r::>4 No [ J
5. Result of appeal: 'i-I"I-iJ,oJ/. UNFOUNded

D. If there was no prison grievance procedure in the institution, did you complain to the prison authorities? Yes ( ] No [ ]
Ifyour answer is Yes, what steps did you take? _ _ _ _ _ _ _ _ _ _ _ __

E. If your answer is No, explain why you did not submit your complaint to the prison authorities:

4 Grievance

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IV. STATEMENT OF ruE CLAIM

State here the facts of your case. Describe how each defendant is involved and how you were harmed by their action. Also include the dates, places of events, and constitutional amendments you allege were violated.

If you intend to allege several related claims, number and set rorth each claim in a separate paragraph. Attach additional sheets ifnecessary.

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Case 1:12-cv-01199-LMB-IDD Document 43 Filed 02/15/13 Page 8 of 9 PageID# 324 Case 1:12-cv-01199-LMB-IDD Document 1 Filed 10/24/12 Page 8 of 9 PagelD# 8

V. RELIEF

I understand that in a Section 1983 action the Court cannot cbange my sentence, release me from

custody or restore good time. Junderstand I should file a petition for a writ of habeas corpus ifJ

desire this type of relie£

(please initial)

The plaintiCfwants the Court to: (check those remedies you seek) _ _ Award money damages in the amount ofS _ _ _ _ _ _ _ _ _ _ _ _ _ __

,E.......... _ _ Grant injunctive relief by
Ii'EfcJES TTIV:J~Ji:="U~J'T",~c;:.:-:/~a~L.~~~;G.j=1..... F=--'7'6--:as=-=e--=-d.....-:O~IV~--_ _ Other Co(VS7Tm T/QNaL Vltl/.;J.r;PA/S aNd evLES •

VI. PLACES OF INCARCERATION

Please list the institutions at which you were incarcerated during the last six months. If you were transferred during this period,list the date(s) of transfer. Provide an address for each institution.

VII. CONSENT

CONSENT TO TRIAL BY A MAGISTRATE JUDGE: The parties are advised of their right, pursuant to 28 U.S.C. § 636(c), to have a U.S. Magistrate Judge preside over a trial, with appeal to the U.S. Coun ofAppeals for the Fourth Circuit.
Do you consentto proceed before a U.s. Magistrate Judge: Yes T><l No [ ]. You may
consent at any time; however, an eady consent is encouraged.

YlU. SIGNATURE

If there is more than ooe plaintiff, each plaintiff must sign for himself or h~rself.

Signed this IO+h day of OC.T'ObEr

Plaintiff

C~

,20 J2...

6 Grievance

Case 1:12-cv-01199-LMB-IDD Document 43 Case 1:12-cv-01199-LMB-IDD Document

1

FilFeidled021/01/52/41/312

Page 9 of 9 PageID# Page 9 of 9 PagelD#

325 9

, , SUSSEX I SfATE ,RISON

. .-.

DEATIi ROW CONTAcr VISrTlNG REQUEST

4'\~ ~~O., .2.j.?~~

It: I

n

ord

e

r

for 1.

any inmate to This request

receive a contact must be received

visit: by th

f

Ward~n

at

!e3st

. two

--~~

~

wt/tl<s\~~~\~ t)

~
;

2.

a.Jvance of the requested visiting date. The inmate must be at least 90 days charge free

L'1 orderto

r

;~!\'e~~.~~~~';~~#\

tt~

visit. Contad visits are forIMMEDJATS FAMrLY ONlY. ~ ~wr-:p,t. !;':I
3. The Warden must approve the requej~ Denials may be ~pp 0 touc:m1.,/7

the Inmate Grievance Procedure.

199.,.t

TO: WARDEN 8 /,.5a.r.soAl
FROM: (nmate brEr1't2l.f?rii:12JNurnbecl3'1U1f5 8uUding/ Bed:.3A'f$

I request a contact visit on 6-:JII-:lIJ/:l and "G-.:Lf/ ;Hlil

_ _ _·at _ _ _ _ with the person(s) listed below.

NOTE: Contact visits will only be approved once every 90 days for any inmate.

• III •••

NAME

RELATIONSHIP

ADDRESS

~DACTED

.

-- ... ------.- - -

~-

"{(raEON Fa.MI~Y'r""8..V/F'-$ Over :l.(JOo M/~L.e"._-.s_______

Date: 3-/5".;LO/~

d/i::d!~

~DISAPPROVED ( ) APPROVED (

Reason

for

Inmate's disapproval:

SrU!~UtOurO~1~ I.r~jAl

HOUl Limit _______._

lWrl£ \\.fAmi~ MJ.tI1 OJOY'-4000

.. .-.

~~i~OOIk

Date:--=3~J-=Z:::.r;:;(JIJ-'It..::;_ .Y __

Warden's Signature

For APPRO' E:J r':-lucsts;end ~ri6i-~l to the Administratiun Entry Officer and caples to: ~nQ\ol1e, COS. Sup~rt COlJull.tndt:l, ~I.&sb:=r Control, Supl'urt Building Hanway Contrul. :;upport Buildf."CORtroL Ot:.lth Row Housing Unit Manag~r
t:"r Df.Hrp:tOVE~ .-eq.JllSts r~tum nrigir.al to inntate.

 
 Case 1:12-cv-01199-LMB-IDD Document 44 Filed 02/20/13 Page 1 of 1 PageID# 486

IN THE UNITED STATES DISTRICT COURT FOR EASTERN DISTRICT OF VIRGINIA Alexandria Division
ALFREDO PRIETO,

zee
FEB 2 o 2013
clHllff"

Plaintiff, HAROLD W. CLARKE, et al.

1:12CV1199 (LMB/IDD)

Defendants.

ORDER
In their response to defendants' Motion for Summary Judgment plaintiff's counsel correctly argue that defendants' motion is premature because plaintiff has not had a chance to conduct discovery into facts which would be relevant to defendants' motion. For this reason, it is hereby
ORDERED that defendants' Motion for Summary Judgment [Dkt No. 24] be and is DENIED WITHOUT PREJUDICE, and it is further
ORDERED that a Scheduling Order be issued forthwith.
The Clerk is directed to forward a copy of this Order to
counsel of record.
Entered this £p day of February, 2013.

Alexandria, Virginia

Leonie M. Brinkema
United States District Judge

 
 Case 1:12-cv-01199-LMB-IDD Document 99 Filed 12/13/13 Page 1 of 1 PageID# 2121

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division
ALFREDO PRIETO,
Plaintiff,

1
DEG I 3
.r

v.

1,12cvl199 (LMB/IDD)

HAROLD C. CLARKE, et al.,

Defendants.

ORDER

Before the Court is plaintiff's Hotion for Attorneys' Fees and

Costs [Dkt . No . 94], in which he seeks an award as the "prevailing

party" in this matter under 42 U. S.C . §§ 1988 and 1997e{d).

Defendants do not oppose the amount of the fees or costs requested.

Accordingly, plaintiff's Motion for Attorneys' Fees and Costs [Dkt.

No. 94] is GRANTED, and it is hereby

ORDERED that plaintiff is entitled to attorneys' fees in the

amount of $151,734.39 and costs in the amount of $13,661.60, for a

total award of $165,395.99; and it is further

ORDERED that the hearing scheduled for Thursday, December 19,

2013, be and is CANCELLED. Defendants have indicated that they

intend to file a motion for a stay on both the judgment in favor of

plaintiff [Dkt. No . 93] and this award, at which time they may notice

a new hearing date.

The Clerk is directed to forward copies of this Order to counsel

~ of record.
Entered this ~"~day of December, 2013.

Alexandria, Virginia

lsi Leonie M. Brinkel a
United States District Judge

 
 Case 1:12-cv-01199-LMB-IDD Document 108 Filed 01/10/14 Page 1 of 1 PageID# 2186

';P

JAN |0 2014

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF VIRGINIA

Cl£.,K U3. DISTRICT COURT I

Alexandria Division

ALFREDO PRIETO,

Plaintiff,

V.
HAROLD C. CLARKE, et al.,

l:12cvll99 (LMB/IDD)

Defendants.

ORDER
For the reasons stated in open court, it is hereby ORDERED that defendants' Motion for Temporary Stay Pending Appeal [Dkt. No. 103] be and is DENIED.

The Clerk is directed to forward copies of this Order to counsel

of record.
4m
Entered this /D day of January, 2014.

Alexandria, Virginia

(d
hi Leonie M. Brinkema
United States District Judge

 
 Appeal: 13-8021 Doc: 56

Filed: 03/10/2015 Pg: 1 of 35

PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 13-8021

ALFREDO PRIETO,

Plaintiff - Appellee,

v.

HAROLD CLARKE, D irector; A. DAVID ROBINSON, Depu ty Director; E. PEARSON, Warden,

Defendants - Appellants.

-------------------------

TONI V. BAIR; F. WARREN BENTON; KATHLEEN M. DENN EHY; BRIAN

JASON FISCHER; MARTIN F. HORN; STEVE J. MART

IN; 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. -------------------------

Appeal: 13-8021 Doc: 56

Filed: 03/10/2015 Pg: 2 of 35

TONI V. BAIR; F. WARREN BENTON; KATHLEEN M. DENN EHY; BRIAN

JASON FISCHER; MARTIN F.

HORN; STEVE J. MART IN; CHASE

RIVELAND; REGINALD A. WILKINSON; JEANNE WOODFORD,

Amici Supporting Appellee.

Appeals from the United States District Court f or 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 publ ished opinion. Judge Motz wro te the majority opinion, in which Judge Shedd joined. Judge Wynn w rote 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 De puty Attorney Ge neral, Linda L. Bryant, Deputy

Attorney General, Public Safe ty & Enforceme nt, Richard C.

Vorhis, Senior Assistant Att orney General, Kate E. Dwyr

e,

Assistant Attorn ey General, Tre vor S. Cox, De puty Sol icitor

General, OFFICE OF THE ATTORNEY GENERAL OF VIR GINIA, Richmond,

Virginia, for Appellants. A bid R. Qureshi , Katherine M.

Gigliotti, Danie l I. Levy, LAT HAM & WATKINS L LP, Washington,

D.C., for Appel lee. Rebecca K . Glenberg, Hop e R. Amezquita,

AMERICAN CIVIL L IBERTIES UNION F OUNDATION OF VIR GINIA, Richmond,

Virginia; Amy Fe ttig, Helen Vera , AMERICAN CIVIL LIBERTIES UNION

NATIONAL PRISON PROJECT, Washington, D.C., for Amici Curiae.

2

Appeal: 13-8021 Doc: 56

Filed: 03/10/2015 Pg: 3 of 35

DIANA GRIBBON MOTZ, Circuit Judge: The district co urt held that t he procedural D ue Process
rights of a capital prisoner were violated by a state policy requiring his co nfinement, prior to execution, in a single cell with minimal visitation and recr eation opportunities. The court ordered state officials either to alter the policy or to improve these conditions. The official s appeal and, f or the r easons that follow, we reverse.

I.

Upon conviction for two capital murders and receipt of two

death sentence s, Alfredo Prie to was incarce rated by the

Commonwealth of Virginia at Sussex I State Pris on in Waverly,

Virginia. Prieto is one of eight Virginia convicts imprisoned

after receipt of the death penalty. All eight capital offenders

are housed in t he 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. Ope rating Proc edure

830.2(D)(7), 460.1A (I) .

Unlike other pr isoners, the se

prisoners are not subject to security classification or

assignment to any alternative confinement . Id. Inmates on

death row live in separate sin gle cells, with visitation and

3

Appeal: 13-8021 Doc: 56

Filed: 03/10/2015 Pg: 4 of 35

recreation restrictions more onerous than those imposed on other

inmates.

After incarceration on Virginia’s death row for nearly six

years as he pur sued 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 s ought injunctive relief . The

district court dismissed the Eighth Amendment claim but found

that Prieto had stated a

plausible Due P rocess claim and

appointed counsel for him.1 Following discovery, the parties

filed cross motions for summary judgment.

The distric t 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 impl icate 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 pe rvasive compared

to the condition s of the genera l prison populat ion, the court

concluded that Prieto had established a Due Process liberty

interest in avoiding th em 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 prose cute and Prieto does not challen ge that decision in the present appeal.

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permanent assig nment to death row did n ot 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 ; w e 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 proce ss violation, a plaintiff must

(1) identify a protected liberty or property interest and (2)

demonstrate deprivat ion of that interest without due process of

law. Because we conclude that Prieto cannot

establish a

protected liber ty interes t, 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 priso n

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confinement conditions , entitling him to procedural Due Process

protections. See, e.g. , Meachum v. Fano , 427 U.S. 2 15 (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 Du e Process Clause .” Meachum, 427

U.S. at 224. And the Court has expressly “reject[ed] . . . the

notion that any grievous loss vi sited 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 interes ts, holding that any mandatory state

directive created a state la

w liberty inte rest 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 a lso held that such a liberty int erest can

arise from the Constitution itself but onl y rarely has

recognized such an interest.

See, e.g. , Vitek v. Jones , 445

U.S. 480, 493 -494 (1980) (re cognizing liberty interest in

avoiding involuntary psychiatric treatment and transf

er to

mental institution). For the first time on appeal, Prieto

contends that th e Constitution s tanding alone pr ovides a liberty

interest entitling him to relief . Even if he ha d preserved this

argument, it would be meritless. See Sandin v. Conner, 515 U .S.

472, 480 (1995) (“The Due Proces s Clause standin g alone confers

no liberty inter est in freedom from state actio n taken within

the sentence i mposed.” (internal quotations and citation

omitted)).

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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 secon d

requirement for establishing a liberty interest warranting

constitutionally adequate proces s. Sandin holds that, while a

state statute or policy may “create liberty interest s” giv ing

rise to Due Process protection , this is so only if the denial of

such an interest “imposes atypic al and significa nt hardship on

the inmate in relation to the ordinary incid ents 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 reaffi rmed that in determining if a prisoner has

established a state -created liberty interest in certain

conditions of co nfinement, the “ threshold question” is whether

such an interest “arise[s] from state policies or regulations.”

Id. at 221 -22. T he Court then reiterated that even if state

policies could b e read to create such an interes t, 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 e stablished 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 proce ss jurisprudence”).

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establish that “ the nature of [the] conditions themselves , ‘in

relation to the ordinary in cidents of prison lif e,’” impose “an

atypical and sig nificant 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. Th at is, the State

and the inmates agreed on the “t hreshold question,” that written

Ohio prison classification regulations controlled the prison

assignment, and so confinement c onditions, of al l inmates. Id.

at 215 -17, 221 . The Wilkinson Court thus focused on the second

prong: whether these regulations created a “lib erty 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 tho se conditions ,” but whether their

application imposed “atypical an d significant ha rdship . . . in

relation to the ordinary incidents of prison life.”

Id.

(quoting Sandin, 515 U.S. at 484)

(internal quotation marks

omitted). Assignment to and c onfinement at t he supermax was

found to constitute an “atypical and signific ant 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

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baseline,” the h arsh 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 th e

district court adopted, rests on interrelated

, critical

misunderstandings of those cases . Prieto treats Sandin and

Wilkinson as es tablishing a ne w regime in whi ch atypical and

harsh confinement conditions, in and of themselv es, give rise to

a protected liberty interest , regardless of whether any state

law or policy creates the possibility o f avoiding suc h

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 t hat atypical and harsh confineme nt conditions, standing alone , can give ris e to a state -created liberty interest. Noting that Wilkinson held that the conditions at the Ohio supermax imposed an atypical hardshi p 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.

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baseline,” 545 U.S. at 223, Prieto asserts that because the conditions on Virginia’s death r ow are just as harsh as those in Wilkinson, he too must have a l iberty interest. But the view that prison cond itions, simply by virtue of their severity, give rise to a protec ted liberty inte rest misreads Sandin, Wilkinson, and the cases that preceded them , and overlook s our binding circuit precedent.
Prieto reads Sandin as “abandon [ing]” the Supreme Court’s prior teaching i n 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 expressl y 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 regulati on “created an a bsolute right to . . . certain substantive procedures .” Id. at 481. Because not all such policie s are “designed to confer righ ts on inmates ,” id. at 482, Sandin added an additional showing necessary to establish a protected liberty interest . Id. at 482. After finding a basi s for an inte rest or expect ation in st ate regulations, an inmate must then demonstrate that denial of th is
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state-created interest resulted in an “atypical and significant

hardship” to him. Id. at 484.

Prieto, now join ed by our friend in dissent, also misreads

Wilkinson. For Wilkinson does not hold that harsh or atypica l

prison conditions in and of themselves provide the basis of a

liberty interest giving rise to Due Process prot ection. Rather,

it was “the inm ates’ interest i n avoiding” erro neous placement

at the supermax under the st ate’s classification regulations

combined with these harsh and at ypical 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. Th us Wilkinson neither eliminates the

first prong nor implies that the “nature of t h[e] conditions” alone establishes a protected liberty interest.5 Id. at 223.

Moreover, Prieto ignores our own binding precedent

rejecting his ap proach. In Lovelace v. Lee , 472 F.3d 174, 20 2

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

a prisoner seeking to bring a procedural due process claim

to

satisfy th e 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 liber ty interest sim ply by imposing

harsh confinement conditions. T his 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 ari

se simply fro m

“conditions of c onfinement having a substantial adverse impact

on the prisoner.” 427 U.S. at 224.

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to demonstrate a liberty in

terest meriting procedural du e

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 ord inary 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, 6 87 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” marks and citation omitted)).6

(internal quotation

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 pr ison conditions

6 Contrary to Prieto’s contention, a recent Fifth Circuit case lends him n o support . See Wilkerson v. Go odwin, 774 F.3d 845 (5th Cir. 2 014). There, t he court held t hat an inmate’s almost forty -year incarceration in solitary confinement, assertedly in vi olation of a st ate classificati on system, gave rise to a liber ty interest prot ected by due pr ocess. 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 st ate 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 acknow ledged, as we hold, that to give rise to a due process challenge , a deprivat ion mu st “resu lt[] from ” the alleged violation of a state regulation . Id. Unlike Wilkerson, Prieto can point to no deprivati on resulting fro m the violation of a state regulation.

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Due Process claim into an Eighth Amendment claim. The Eighth

Amendment’s prohibition on cruel and unusual punishment

“appl[ies] when the condition s of confineme nt compose the

punishment at issue.”

Rhodes v. Chapman , 452 U.S. 337, 347

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

and unnecessary infliction o f 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 wh ether prison conditions

impose cruel an d unusual punis hment. The Due Process clause

requires a cour t to determine whether a sta te has provided

prisoners with a dequate process in applying prison regulations

and policies. Treating Sandin and Wilkinson as h olding that

confinement conditions alone trigger a Due Process claim

--

without regard t o whether a stat e policy or regu lation provides

the basis to challenge such c onditions -- would elide that

critical distinction.

Prieto thus errs in contending that har sh 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 po int to an entitl ement in state regulations or statutes to establish a Due Process claim is (Continued)
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IV. Of course, regar dless of this initial error, Prieto could still establish a basis for Due P rocess protect ion. 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 w ritten 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 conte nded before the district court , albeit briefly, that a liberty interest must be “created by state laws or policies” and that Prieto c ould not establish a right to reclass ification because one does not e xist under state law. Defs’ Mem. in Supp. of Mot. Summ. J. 8, ECF No. 80 ; Defs’ Resp. to Pls’ Mot. Summ. J. 6, E CF No. 81. The district court clearly understo od and indeed stated that the “sole issue” before it was whether Prieto’s “automatic and permanent” placement in the restrictive con ditions of confi nement present in Virginia’s de ath row violates Prieto’s Fourte enth Amendment due process rights, and that this analysis required an in itial determination of “whether a lib erty interest ex ists.” Prieto, 2013 WL 6019215, at *4.
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to Death will b e assigned directly to Death R ow . . . . 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 t he corollary to the requirement that a

state-created li berty interest must be anchore d in a state

policy is that when a state policy expressly and unamb iguously

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 w ritten 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 conditio ns of his

confinement impose a n atypical and significant hardship

in

relation to the ordinary incidents of prison life

.8 Prieto

8 Of course, a court need on ly reach the a typicality question if an inmate has be en deprived of a state -created liberty interest. Here there has been no deprivati on, because there is no state -created liberty interest. Nevertheless, we (Continued)
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recognizes, as he must , that the Supreme Court has yet

to

identify the baseline for determ ining 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 ro w satisfy the

atypicality requirement.

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

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

the ordinary in cidents of pris on life are est ablished by the

conditions imposed on the general prison population.”

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

confinement on d eath row impose an atypical hardship “relative

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

And he argues at length that his confinement con ditions “mirror”

those in Wilkinson, and thus must impose an atypical and

significant hardship “under any plausible baseline.” Id. at 2 2

(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 atyp icality inquiry because it is Prieto’s principal contention and was the basis for the district court’s holding.
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disciplinary segregation but thereafter retained in segregation

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

respect to thos e inmates in disciplinary segregation, whose

conditions of confinement were set by Maryland

(not Virginia)

law, did we de scribe the base line as the co nditions those

particular inmates could expect to “experience a s 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 significan tly. It shoul d come as no

surprise that the baseline does, too. Moreover, we have neve r

interpreted Beverati to establi sh the rule Pr ieto suggests.

Rather, we hav e, 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 s

tate’s prisons, Wilkinson is

instructive. None of the parti es in Wilkinson even suggested

that “ordinary prison conditions” in other Ohio prisons provided

the proper basel ine 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

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courts as to the appropriate baseline

for determining

atypicality. But n o party contended that the “ordinary prison

conditions” of the general prison populati on 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 discret e

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

reason were required by stat e 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 suggeste d that t he baseline be the security classification j ust below that which renders Ohio prisoners eligible for housing at the supermax. The inmates argued that the baseline sh ould be segrega ted confinement units at othe r Ohio prisons. See Transcript at 6-7, 52.

10 Contrary to our dissenting col league’s s uggestion,

confinement of the inmates in Wilkinson to the supermax was not

the “automatic[]” result “of

being convict ed of certain

offenses.” Conv iction of certai n egregious crim es 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 po licy governed as signment in ever y case. That

policy set fort h a highly indi vidualized assignment procedure

“based on numerous factors (e.g., the nature of the underlying

offense, crimina l history, or g ang affiliation) but [] subject

to modification at any time dur ing the inmate’s prison term.”

Id. at 215.

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hardship. These holdings cert ainly do not me an that similar conditions pose an atypical and significant har dship where, as here, state law does mandate t hat a particular convic tion and sentence require confinement under such conditions.
When determining the baseline for atypicality, a court must consider whether the confinemen t conditions are imposed on a prisoner because of his conviction and sentence. For conditions dictated by a prisoner’s conviction and sentence are th e conditions constituting the “ordinary incidents of prison life ” for that prisoner. Sandin, 515 U.S. at 48 4; Lovelace, 472 F.3d at 202; Beverati, 120 F.3d at 502-03. As t he 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 sugg est, that difference s 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 i mposed on offenders convicted of a certain c rime and receiv ing a certain sentence, those confinement conditions are, by definition, the “ordinary incidents of prison life” for such offenders. Virginia law
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mandates that al l persons convic ted of capital c rimes are, upon

receipt of a d eath sentence, automatically con fined 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 Supr eme

Court has attached to the sente nce of convictio n 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 cond itions fell “within the normal

limits or range of custody which the conviction has authorized

the State to imp ose.” Meachum, 427 U.S. at 22 5 (emphasis added)

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

in rejecting a prisoner’s Due P rocess 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 ad ded). A s the

Court explained in Sandin and re peated 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 basi c conditions of

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

Wilkinson, 545 U.S. at 223.

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Prieto, like any other inmate, can only be deprived of that to which he is entitled. Thus, in determining whether a deprivation impo ses a significan t or atypical h ardship on him , the court must u se as its benchmark the incidents of prison life to which he is entitled. Virginia imposes death row confinement on capital offen ders 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 preexecution 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 distric t court, perha ps correctly,

described the isolation that characterizes Virginia’s death row as “dehumanizing”. Prieto, 2013 WL 6019215, at *6 .11 But th e

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 of fenders. A stud y cited by one

of Prieto’s amici , the ACLU , reports as much.

See Mark D.

Cunningham & Mark P. Vigen, Death R ow Inmate Characteristics,

Adjustment, and Confinement: A Critical Review of the

Literature, 20 Behav. Sci. & L. 191, 204 (2002).

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Supreme Court has long held , as it did in Wilkinson, that state correctional officials have broad latitude to set prison conditions as th ey see fit sinc e “[p]rison secu rity, imperiled by the brutal reality of prison gangs, provides the backdrop of the state’s inte rest.” 545 U.S . at 227. Recently the Court emphasized once more that “[t]he difficulties of operating a detention center must not be und erestimated by t he courts,” and that “correctio nal officials . . . must h ave substantial discretion to de vise 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 prescrib e more rigo rous judicial review of state statutes and regulations governing prison confinement conditions. B ut it has not. Concerned with eliminating “disincentives for S tates to ‘codify’ prison management procedures,” the Sandin Court adopted an approach that woul d encou rage States to codify their pol icies regarding treatment and confinement of inmates . 515 U.S. at 48 2. 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 procedure s establishing very restrictive confinement con ditions. The ju dgment that this trade-off strikes the correct balan ce between the dictates of the Due Process Clause and the pressures on state correctional
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systems is one that the Supreme Court ha s made and we cannot disturb. Of course, t he Court may one day alter its approach to the Due Process Clause. But unl ess and until th e 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 “p revailing party,” we must als o reverse the order awarding costs and attorney’s fees to Prieto.
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WYNN, Circuit Judge, dissenting:

A unanimous Sup reme Court told us in no unce rtain terms

that prisoners h ave a liberty i nterest in avoid ing indefinite,

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

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

determining wh ether 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 “ta ken 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 coul d 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, an d arguably mor e egregious th an, those in

Wilkinson. I would therefore follow

Wilkinson and find

Plaintiff Alfred Prieto entitle d to at least some modicum of

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

Wilkinson unnecessarily narrowly in signing of f on Prieto’s

automatic, permanent, and unrevi ewable placement in the highl y

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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 r elation to the ordinary incid ents 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 a typical and sign ificant hardship 25

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within the cor rectional conte xt. It foll ows that [the

prisoners] have a liberty interest in avoiding” them.

Id. at

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

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

issue with typic al conditions. And finding th e conditions at

issue atypically harsh, the Cour t held that a pr isoner subjected

to the condition s is due at least an informal no tice and hearing before he is subjected to them.1

Several conditions caught the

Supreme Court ’s eye in

Wilkinson: the solitary nature of the confi nement and near

complete prohibition on human co ntact; the lack of stimuli, with

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

potentially inde finite period o f the placement —with only an

annual review af ter 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 “tak en together they

impose an aty pical and sig nificant 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 w ould be a sepa rate, Eighth Ame ndment inquiry . Nor would I hold so here, not least because, as in Wilkinson, that is not before us.
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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 c onditions of con finement are lar gely devoid of

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

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

he may exercise in a small enclo sure with a conc rete 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 exampl e, 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 pa role became ine ligible when pl aced into the

restrictive s upermax confinement at issue in Wilkinson. 545

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

holding only to those (few) i nmates who woul d otherwise be

eligible for parole but for their supermax confinement. And I

agree with the Seventh Circu

it that any contention that

Wilkinson turned on the (in)eli gibility for par ole constitutes

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“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 con ditions of

confinement, which are strikingl y similar to tho se in Wilkinson,

when taken tog ether “impose[] an atypical

and significant

hardship under a ny plausible bas eline.” Id. And if the Su preme

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. Fo r ex ample, 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 libert y interest befo re reaching the atypical and

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

that logic to it s end would mean that prisoners have no interest

in avoiding even extreme hardships so long as a state simply

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removes all delineating prison regulations or expressly

disclaims any li berty expectation. Yet it was precis ely this

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

promulgate procedures for priso n management” t hat 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 mi sleading 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 paragra ph that the majority opinion

redlines in to p lay 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 “trig gered” due proc ess protec tions. 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 s ufficed. 545

U.S. at 224-25.

The majority opi nion 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

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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 consequenc e of being “c onvicted of cert ain offense s.”

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 l iberty interest in avoiding

the restrictive

supermax conditions.

Instead, the Supreme Court broadly stated that “the

touchstone of t he inquiry into the existence of a protected,

state-created liberty interest in avoiding restrictive

conditions of c onfinement is n ot the language of regulations

regarding thos e 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 protect ed by the Due P rocess Clause.”

Sandin, 515 U.S. at 483.

I agree with th e majority opini on that the Sup reme Court

has been anythi ng other than consistent in i ts approach to

prisoner due pro cess cas es. Th e Supreme Court suggested that

prisoner liberty interests exist whenever something is

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sufficiently imp ortant. See, e .g., Morrissey v. Brewer , 408 U.S. 471 (1972). Then it indicated that liberty interests are a function of man datory verbiage in written re gulations. See, e.g., Wolff v. McDonnell , 418 U.S. 539 (1974). Later the Court rethought that a pproach, holding that such verbi age is, in f act, 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 be st to read the d ue process tea leaves in the pr ison 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 add ress the plain tiff’s due pro cess claim and remanded the mat ter to the dist rict court for a de termination “in the first i nstance.” 472 F.3d at 203. Therefore, even assuming that o ne could not s quare 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 gr oss overstatement. Ante at 11. Moreover, to the extent Lovelace parts ways with Wilkinson, we
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certainly “have no authority to overrule a Supreme Cour t

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 t he inquiry into the existence of a protected,

state-created liberty interest in avoiding restricti

ve

conditions of c onfinement is n ot the language of regulations

regarding those conditions but the nature of those conditions

themselves in r elation to the ordinary incid ents of prison

life.” Wilkinson, 545 U.S. at 223 (quotation m arks omitted).

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

sufficiently egregious that “ta ken together[, they] impose an

atypical and significant hardship within the correctional

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

“give rise to a lib

erty interest in their avoidance.”

Wilkinson, 545 U.S. at 223.

That being said, there is no nec essary tension b etween the

existence of a liberty inter est in avoidin g restrictive

conditions of confinement and, for example,

the state’s

penological interest s 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 ne cessary and appr opriate in light

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

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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 esta blished, the que stion then becomes what pro cess is due to protect it. To determine whether procedural safeguards sufficed t o protect the l iberty 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 s uch interest through the procedures used, and the pr obable value, if any, of additio nal 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)). Applyi ng those factors , the Supreme C ourt held that “informal, nonadversary procedures” informing inmates of the factual basis for their restrictive placement, a fair opportunity for rebuttal, and re gular review suf ficed to co mport 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
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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 receiv

ing vastly different

conditions of confinement and procedural sa feguards. 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 condi tions may well b e necessary and appropriate” for

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

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

liberty interest in their avoida nce”—and that al l that would be

required to comp ort with due pr ocess would be informal notice

and an infor mal 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 g ive rise to d ifferent liberty interests.” Ante at 19. But allowing Virginia to confine Prieto automatically, based on his death sente nce, to highly restrictive conditions for the d uration of his i ncarceration (so far, almost seve n years) and wit hout any opportu nity for review does just that.
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III. For the reasons above, I would a ffirm the distri ct court’s judgment and, accordingly, respectfully dissent.

35

 
 Case 1:12-cv-01199-LMB-IDD Document 106 Filed 12/31/13 Page 1 of 11 PageID# 2140

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION

ALFREDO PRIETO Plaintiff,
vs. HAROLD C. CLARKE, ET AL.
Defendants.

) ) ) ) ) Case No. 1:12-CV-01199 ) ) ) ) ) ) )

PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION FOR TEMPORARY STAY PENDING APPEAL
On November 12, 2013, this Court entered summary judgment in favor of Plaintiff

Alfredo Prieto, concluding that Defendants “failed to comply with the demands of due process”

by automatically assigning Mr. Prieto to “indefinite, long-term confinement in severe

conditions” of confinement without any process. Slip op. 17, 25, ECF No. 91. To remedy that

violation, the Court provided Defendants with “multiple options going forward.” Id. 27. In

particular, the Court indicated that Defendants could implement the Court’s Order either by

“provid[ing] plaintiff with an individualized classification determination using procedures that

are the same or substantially similar to the procedures used for all non-capital offenders” or by

altering Mr. Prieto’s conditions of confinement, so that they “would no longer impose an atypical

and significant hardship on plaintiff.” Id.

In asking this Court to stay its Order, Defendants boldly claim that this Court’s decision

will “likely” be reversed by the Court of Appeals. Defs’ Mot. to Stay 5, ECF No. 104. They are

Case 1:12-cv-01199-LMB-IDD Document 106 Filed 12/31/13 Page 2 of 11 PageID# 2141

wrong. In any event, Defendants fall well short of the showing required to justify a stay.1 Far from making a “strong showing” that this Court’s decision will be reversed on appeal, Defendants rely entirely on arguments that this Court already has rejected. In addition, Defendants fail to demonstrate that they will suffer irreparable injury from implementing this Court’s “limited ruling,” ignoring entirely this Court’s observation that Defendants’ “cost of compliance” is “limited.” Slip op. 27. Defendants instead are forced to claim that Mr. Prieto is unlikely to suffer harm from his ongoing deprivation of constitutional rights on the theory that after five years of indefinite placement without due process in a “solitary confinement setting,” Mr. Prieto is now “well-adjusted” to conditions this Court has described as “uniquely severe”. Defs.’ Mot. to Stay 4, 6; slip op. 15. Defendants offer no convincing justification to allow Mr. Prieto’s placement in atypical and severe conditions to continue without affording him even the most basic procedural protections required by the Constitution. Accordingly, this Court should decline Defendants’ invitation to further extend Mr. Prieto’s indefinite assignment in solitary confinement without due process.
ARGUMENT In deciding whether to grant a motion for a stay pending resolution of post-trial motions or appeal under Fed. R. Civ. P. 62(b) or 62(c), a court should consider the following: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Hilton v. Braunskill, 481 U.S. 770, 776 (1987). To obtain a stay pending

1

Defendants offer no explanation on how they could be irreparably injured unless this

Court stayed its order awarding Mr. Prieto attorneys’ fees. Plaintiff has no objection, however,

to staying the award of fees pending resolution of the appeal by the Court of Appeals.

2

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appeal, a movant must establish “a strong likelihood of success on appeal, or . . . , failing that, . . . demonstrate a substantial case on the merits,” provided the other factors militate in movant’s favor. Id. at 778 (emphasis added).
A. Defendants Fail to Make A Strong Showing that They Are Likely to Succeed on the Merits.
In support of their claim that the Court of Appeals is “likely” to overturn this Court’s decision on the merits, Defendants rely on a series of assertions that this Court already has properly rejected. Defs.’ Mot. to Stay 2-5; slip op. 21-22, 25-26. But it is inappropriate to use a motion for stay as a request for reconsideration. As other courts have recognized, “‘[s]imply repeat[ing] objections and arguments that already have been considered by’ the Court does not amount to a ‘strong showing that [Movants are] likely to succeed on the merits.’” Bridgeport Guardians, Inc. v. Delmonte, 620 F. Supp. 2d 337, 342-43 (D. Conn. 2009) (quoting Malarkey v. Texaco, Inc., 794 F. Supp. 1248, 1250 (S.D.N.Y. 1992)).
Defendants first propose that in comparing Defendants’ conditions of confinement to the ordinary incidents of prison life, “this Court relied on an inappropriate ‘baseline,’ comparing the conditions of confinement on death row with the conditions of confinement experienced by general population inmates.” Defs.’ Mot. to Stay 2. But as this Court correctly recognized, “it is clear that the Fourth Circuit uses a facility’s ‘general prison population’ as the relevant baseline.” Slip op. 13 (citing Beverati v. Smith, 120 F.3d 500, 504 (4th Cir. 1997)). Moreover, the Supreme Court found the maximum-security conditions it considered in Wilkinson v. Austin to be so severe that they would implicate a liberty interest compared to “any plausible baseline.” 545 U.S. 209, 223 (2005) (emphasis added). Because this Court found Mr. Prieto’s “dehumanizing conditions are eerily reminiscent of those at the maximum-security prison in Wilkinson,” slip op. 14, the same result would follow.
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Defendants next point to case law from other jurisdictions in an attempt to support their claim that “there is no protected liberty interest in avoiding confinement on death row.” Defs.’ Mot. to Stay 3. Defendants cited the identical set of cases in their motion in support of summary judgment, and this Court appropriately found it unconvincing. See Defs’ Mot. for Summ. J. 1516, ECF No. 80. As Plaintiff explained in his opposition to Defendants’ motion for summary judgment, two of the cases on which Defendants rely involve substantive due process claims, not the procedural due process claim at issue here. See Plfs.’ Resp. to Defs.’ Mot. for Summ. J. 15, ECF No. 83 (discussing Peterkin v. Jeffes, 855 F.2d 1021 (3d Cir. 1988); Apanovitch v. Wikinson, 32 F. App’x 704 (6th Cir. 2002)). And the other case predates both Wilkinson and Sandin v. Conner, 515 U.S. 472, 484 (1995), and is of little relevance. See Defs.’ Mot. for Summ. J. 15 (discussing Parker v. Cook, 642 F.2d 865, 873 (5th Cir. Unit B 1981)).
Finally, Defendants charge that this Court “failed to heed the judgment of prison administrators, who opined that the current conditions on death row are the only conditions in which death-sentenced offenders can be safely housed.” Defs.’ Mot. to Stay 5. As they did on summary judgment, Defendants purport to justify this claim on the theory that inmates sentenced to death cannot be maintained in any less severe conditions because they inevitably and uniquely have “nothing to lose.” Defs.’ Mot. to Stay 4. This Court has already explained, however, that the claim that death row inmates have “nothing to lose” does not “find[] much support in the record. Death row inmates have obvious incentives to behave well and take rehabilitation seriously, including the possibility that new forensic evidence might undercut a conviction, a habeas petition might be granted, or that good behavior might improve the prospects of a commuted sentence.” Slip op. 20. Defendants notably provide no new information in support of their motion for stay that casts any doubt on this Court’s conclusion. Indeed, Defendants
4

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themselves concede that unlike many incarcerated individuals, inmates sentenced to death “do not typically act out or exhibit disruptive behaviors on a day-to-day basis.” Defs.’ Mot. to Stay 4.
In any event, Defendants simply misstate the record when they assert that the testimony of VDOC’s experts supports their claims that inmates sentenced to death have nothing to lose and cannot be maintained in other conditions. To the contrary, when asked during his deposition whether “any [death row offenders] would be able to handle a situation that was less restrictive [than death row] and not be a security threat,” the Warden of Sussex I State Prison, at which death row is located, responded that “[i]f it was just me and them, yes, on one or two.” Davis Dep. 137:2-17 (emphasis added). VDOC’s Director, as well as VDOC’s Director of Classification Services, both likewise acknowledged—consistent with this Court’s own findings—that not all death row offenders have “nothing to lose.” See Clarke Dep. 79:24-80:16; Parks Dep. 64:12-65:5. In short, it is Defendants themselves who invite this Court to ignore judgments informed by the collective experience of VDOC’s leaders—not the other way around.
This Court properly rejected Defendants’ arguments, and Defendants provide no support for their claim that the Court of Appeals is “likely” to cast this Court’s reasoning aside. Defendants therefore fail to make any showing—let alone a strong one—that the Court of Appeals is likely to reverse this Court’s decision on the merits.
B. Defendants Fail to Demonstrate that Irreparable Injury is Likely. Even if Defendants could demonstrate a substantial case on the merits, they still cannot show that the other factors militate in favor of a stay. In particular, Defendants offer no evidence to support their claim that irreparable injury is likely unless this Court issues a stay. “[S]imply showing some ‘possibility of irreparable injury,’ fails to satisfy [this] factor.” Nken v. Holder, 556 U.S. 418, 434-35 (2009) (citation omitted). Cf. 11A Charles Alan Wright et al., Federal
5

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Practice and Procedure § 2948.1 at 139 (2d ed. 1995) (applicant must demonstrate that in the
absence of a preliminary injunction, “the applicant is likely to suffer irreparable harm before a
decision on the merits can be rendered”). Here, Defendants entirely ignore this Court’s own
finding that the “cost of compliance” with this Court’s ruling is “limited.” Slip op. 27. And
Defendants fail to marshal any evidence to support their claim that irreparable injury is likely to
follow if they were to implement either of the alternatives identified by this Court as means of
satisfying the judgment. Defs.’ Mot. to Stay 5-6. Accordingly, Defendants do not come close to
meeting their burden on this prong.
First, Defendants present no factual basis—none—to support their assertion that
modifying Mr. Prieto’s conditions of confinement in limited ways would result in irreparable
injury. As explained supra at 5, Defendants’ own testimony rejects their assertion that “death-
sentenced inmates cannot be housed in a less restrictive setting.” Defs.’ Mot. to Stay 5. Indeed,
it is striking that Defendants’ own research during discovery revealed that every single other
state within the jurisdiction of the United States Court of Appeals for the Fourth Circuit houses
inmates sentenced to death in conditions less severe and solitary than those in Virginia:
In Maryland, inmates sentenced to death are integrated into the general population. Defs.’ Resp. to Pl.’s Second Req. for Produc. of Docs. (attached as Exhibit (“Ex.”) A)2 at 11. In North Carolina, inmates sentenced to death participate in congregate programming with other inmates, may socialize with other inmates in common rooms, and receive recreation in an outdoor yard. Id. at 21, 29; and In South Carolina, inmates are permitted greater freedom of movement within the death row unit without restraints. Id. at 14.3

2

The exhibit cited herein is attached as an exhibit to the Declaration of Katherine Gigliotti

in support of this Opposition to Defendants’ Motion.

3

The death penalty is not an available punishment in West Virginia. Defs’ Resp. to Pl’s

Second Req. for Produc. of Docs., Ex. A at 8.

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Many jurisdictions outside the Fourth Circuit likewise maintain inmates sentenced to death in less severe conditions.4 Defendants point to no evidence that death row inmates within these jurisdictions have inevitably and universally caused injury as a result of their assignment to such conditions. That numerous other jurisdictions securely and successfully incarcerate death row inmates under conditions similar to or even less severe than those sufficient to satisfy this Court’s ruling illustrates that Defendants’ unsupported predictions of irreparable injury are unfounded.
Defendants offer even less support for their claim that affording Mr. Prieto process—in the form of an individualized, reclassification decision—would impose irreparable injury on Defendants. To begin with, Defendants provide no support for the assertion that this Court’s order would require Defendants to “overhaul their classification system” or that the “bulk of the current classification system is not designed to contemplate death-sentenced offenders.” Defs.’ Mot. to Stay 5 (emphasis added). To the contrary, during his deposition, VDOC’s Director of Offender Management Services, who manages the classification process, demonstrated a prospective reclassification of Mr. Prieto using VDOC’s current reclassification process, and found after just a few minutes that Mr. Prieto could be evaluated on nearly every existing prong. Moreover, Mr. Parks concluded that—had he been eligible for reclassification—Mr. Prieto would have been selected for reclassification to less restrictive conditions on the basis of his long

4

For example, Missouri—like Maryland—has integrated death-sentenced inmates into the

general prison population with positive results. See Mark D. Cunningham et al., Is Death Row

Obsolete? A Decade of Mainstreaming Death-Sentenced Inmates in Missouri, 23 Behav. Sci. &

L. 307 (2005), available at http://www.ncbi.nlm.nih.gov/pubmed/15968709; see also Defs.’

Resp. to Pl.’s Second Req. for Produc. of Docs., Ex. A at 4. Similarly, inmates on death row in

California who “follow [the] rules” are permitted five hours of recreation per day, as well as

“contact with [their] family,” and “a variety of hobby programs,” among other privileges. See

Nancy Mullane, Walking death row at San Quentin State Prison, KALW S.F. (Apr. 29, 2013),

available at http://kalw.org/post/walking-death-row-san-quentin-state-prison; see also Defs.’

Resp. to Pl.’s Second Req. for Produc. of Docs., Ex. A at 26.

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record of good behavior in prison. Compare Parks Dep. 29:4-7 (“typically after a year, definitely two years, if someone has not picked up infractions, they will typically go down in a security level”) with Defs.’ Mot to Stay 6 (“[Mr. Prieto] has not had any disciplinary violations in recent history”). Regardless, even assuming that updating VDOC’s classification process required some resources, it has long been the rule that “mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay, are not enough” to establish irreparable injury. Long v. Robinson, 432 F.2d 977, 980 (4th Cir. 1970). It is exceedingly difficult to understand how merely affording individualized classification to Mr. Prieto—a process VDOC affords annually to roughly 30,000 other inmates—would somehow irreparably injure Defendants.
C. A Temporary Stay Would Harm Mr. Prieto. Having found that Mr. Prieto is presently suffering a deprivation of his constitutional rights from his indefinite placement without due process in conditions that this Court has described as “uniquely severe” and “dehumanizing,” it is axiomatic that Mr. Prieto would be harmed by the imposition of a stay. Incredibly, however, Defendants urge this Court to find that Mr. Prieto would not be harmed by extending his stay in such conditions because, after five years of solitary confinement, he is “well-adjusted to his current conditions of confinement.” Defs.’ Mot. to Stay 6. That Mr. Prieto has behaved well notwithstanding his indefinite placement in “dehumanizing” conditions is hardly a viable argument in favor of perpetuating those conditions without due process. And Defendants’ unsupported claim that Mr. Prieto is not harmed by his ongoing placement in his present conditions of confinement not only defies common sense, but also ignores the uncontradicted expert report of Dr. Grassian, who expressly found that Mr. Prieto’s continued incarceration in his present conditions of confinement “aggravate[s] the psychological burdens borne by Mr. Prieto . . . [and] leads to severe and deleterious
8

Case 1:12-cv-01199-LMB-IDD Document 106 Filed 12/31/13 Page 9 of 11 PageID# 2148
psychological harm.” Expert Report of Dr. Stuart Grassian at 24, ECF No. 75, Plfs. Mot. for Summ. J. at Ex. 35.5
D. The Public Interest Does Not Support a Stay. In suggesting that the public interest does not support a stay, Defendants ignore that “upholding constitutional rights is in the public interest.” Legend Night Club v. Miller, 637 F.3d 291, 303 (4th Cir. 2011) (citing Giovani Carandola, Ltd. v. Bason, 303 F.3d 507, 512 (4th Cir. 2002)). Defendants’ only response is to repeat the unsupported claim—rejected by this Court— that the only safe way to house Mr. Prieto is under his present conditions of confinement. For reasons explained supra, at 6-7, that is inaccurate. Moreover, the record shows that Defendants have successfully incarcerated individuals convicted of capital murder and who will never leave prison in settings robustly secure, but less harsh than the “uniquely severe” conditions to which Mr. Prieto has been indefinitely assigned without process. See VDOC Classification File for Example Offender #2 (Bates 853-863), ECF No. 75, Ex. 11.
CONCLUSION For the foregoing reasons, Defendants’ motion for a stay pending appeal should be denied.

5

Defendants’ unprecedented threat that they would “likely” reclassify Mr. Prieto to

another solitary confinement facility with less “benefits” is both disturbing and puzzling. Defs.’

Mot. to Stay 6 (emphasis added). As explained supra, Defendants’ own Director of Offender

Management Services believed that Mr. Prieto would obtain reclassification to less severe

conditions of confinement. And Defendants themselves have explained that other solitary

confinement settings—such as disciplinary segregation—are “temporary or short-term

assignments” that are considered so severe that offenders receive breaks of 15 days for every 30

days placed in segregation. Offenders also generally control their exit through good behavior.

Defendants fail to explain on what pretext Mr. Prieto could be permanently assigned to such a

setting. And if the Defendants were to place him in such conditions of confinement, he would

certainly inform the Court of their violation of its Order.

9

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December 31, 2013

Respectfully Submitted,
/s/ Abid R. Qureshi Abid R. Qureshi (VSB No. 41814) Michael Bern (admitted pro hac vice) Katherine Gigliotti (admitted pro hac vice) Daniel Levy (admitted pro hac vice) Anne Hanson (admitted pro hac vice) 555 Eleventh Street, NW Suite 1000 Washington, DC 20004 Telephone: (202) 637-2200 Fax: (202) 637-2201 Email: abid.qureshi@lw.com Email: michael.bern@lw.com Email: katherine.gigliotti@lw.com Email: daniel.levy@lw.com Email: anne.hanson@lw.com Attorneys for Plaintiff Alfredo Prieto

10

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CERTIFICATE OF SERVICE I hereby certify that on this 31st day of December, 2013, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which caused an notification of electronic filing (NEF) to be sent to the following:
Kate E. Dwyre, AAG, VSB # 82065 Office of the Attorney General Public Safety & Enforcement Division 900 East Main Street Richmond, Virginia 23219 (804) 786-5630 Email: kdwyre@oag.state.va.us Attorney for Defendants
/s/ Abid R. Qureshi Abid R. Qureshi (VSB No. 41814) LATHAM & WATKINS, LLP 555 Eleventh Street, NW Suite 1000 Washington, DC 20004 Telephone: (202) 637-2200 Fax: (202) 637-2201 Email: abid.qureshi@lw.com Attorney for Plaintiff Alfredo Prieto
11

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 Case: 1:12-cv-1199 As of: 03/21/2018 11:32 PM EDT 1 of 10
U.S. District Court Eastern District of Virginia − (Alexandria) CIVIL DOCKET FOR CASE #: 1:12−cv−01199−LMB−IDD

CLOSED

Prieto v. Clarke et al Assigned to: District Judge Leonie M. Brinkema Referred to: Magistrate Judge Ivan D. Davis Case in other court: 4th Circuit, 12−08025
4th Circuit, 13−08021
4th Circuit, 14−06226 Cause: 42:1983 Prisoner Civil Rights
Plaintiff

Date Filed: 10/24/2012 Date Terminated: 04/15/2015 Jury Demand: None Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question

Alfredo Prieto

represented by Abid Riaz Qureshi Latham & Watkins LLP 555 11th St NW Suite 1000 Washington, DC 20004−1304 (202) 637−2200 Fax: 202−637−2201 Email: abid.qureshi@lw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Harold C. Clarke Director

represented by Richard Carson Vorhis Office of the Attorney General (Richmond) 202 North 9th Street Richmond, VA 23219 (804) 786−4805 Fax: (/804) 786−4239 Email: rvorhis@oag.state.va.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kate Elizabeth Dwyre Office of the Attorney General (Richmond) 900 E Main St Richmond, VA 23219 (804) 786−5630 Fax: (804) 786−4239 Email: kdwyre@oag.state.va.us ATTORNEY TO BE NOTICED

Defendant
A. David Robinson Deputy Director

represented by Richard Carson Vorhis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kate Elizabeth Dwyre (See above for address) ATTORNEY TO BE NOTICED

Defendant
E. Pearson Warden

represented by Richard Carson Vorhis (See above for address) LEAD ATTORNEY

Case: 1:12-cv-1199 As of: 03/21/2018 11:32 PM EDT 2 of 10
ATTORNEY TO BE NOTICED
Kate Elizabeth Dwyre (See above for address) ATTORNEY TO BE NOTICED

Date Filed 10/24/2012 10/24/2012 10/24/2012 11/02/2012
11/14/2012 11/19/2012 11/23/2012 11/26/2012
11/26/2012 11/27/2012 11/27/2012 11/27/2012

# Docket Text
1 COMPLAINT against Harold C. Clarke, E. Pearson, A. David Robinson, filed by Alfredo Prieto. (Attachments: # 1 Attachment 1, # 2 Attachment 2)(rban, ) (Additional attachment(s) added on 10/25/2012: # 3 Envelope, # 4 Letter, # 5 Report Prisoner Data) (rban, ). (Entered: 10/25/2012)
CONSENT to Jurisdiction by US Magistrate Judge by Alfredo Prieto. (rban, ) (Entered: 10/25/2012)
2 MOTION for Leave to Proceed in forma pauperis by Alfredo Prieto. (rban, ) (Entered: 10/25/2012)
3 MEMORANDUM OPINION AND ORDER. Accordingly, it is hereby Ordered that plaintiffs claim regarding Sussex I State Prisons visitation policy be and is DISMISSED WITH PREJUDICE for failure to state a claim, pursuant to 28 U.S.C. § 1915A(b)(1); and it is further ORDERED that plaintiff's request to proceed in forma pauperis is conditionally granted to the extent that plaintiff need not prepay the filing fee at this time. Plaintiff is directed to sign and return the attached Consent Form within thirty (30) days from the date of this Order. If the Court grants plaintiff in forma pauperis status, he will be required to pay the filing fee in installments after first paying an initial filing fee; and it is further ORDERED that the Clerk request plaintiff's institution to provide an Inmate Account Report Form on plaintiff within thirty (30) days of the date of this Order; and it is further ORDERED that plaintiff's failure to comply with any part of this Order within THIRTY (30) DAYS FROM THE DATE OF THIS ORDER, or failure to notify this Court immediately in the event he is transferred, released, or otherwise relocated, may result in the dismissal of this complaint pursuant to Fed.R.Civ.P.41(b). (See Order For Details). Signed by District Judge Leonie M. Brinkema on 11/2/12. (nhal) (Entered: 11/05/2012)
4 Prisoner Trust Fund Account Statement by Sussex I State Prison. (nhall) (Entered: 11/15/2012)
5 Prisoner Payment: $ 100.00, receipt number 14683032312. (Attachments: # 1 Letter) (nhall) (Entered: 11/20/2012)
6 Consent to Collection of Fees by Alfredo Prieto. (nhall) (Entered: 11/26/2012)
7 ORDER. Accordingly, it is hereby ORDERED that plaintiff's application to proceed in forma pauperis (Docket #2) be and is GRANTED; and it is further ORDERED that the petition be and is FILED in forma pauperis and it is further ORDERED that plaintiff's failure to notify the Court immediately in the event he is transferred, released, or otherwise relocated, may result in the dismissal of this complaint pursuant to Fed. R. Civ. P. 41(b). (See Order For Details). Signed by District Judge Leonie M. Brinkema on 11/26/12. (nhall) (Entered: 11/27/2012)
8 NOTICE Of Mailing Notice Of Lawsuit and Request For Waiver Of Service Of Summons To Defendants by Harold C. Clarke, E. Pearson, A. David Robinson. (nhall) (Entered: 11/27/2012)
9 Consent to Collection of Fees by Alfredo Prieto. (Attachments: # 1 Letter)(nhall) (Entered: 11/27/2012)
10 NOTICE OF APPEAL as to 3 Order,,,,, by Alfredo Prieto. Appeal Fee Not Paid. Copy Mailed To Plaintiff. (Attachments: # 1 Letter)(nhall) (Entered: 11/27/2012)
11 Transmission of Notice of Appeal to US Court of Appeals re 10 Notice of Appeal (All case opening forms, plus the transcript guidelines, may be obtained from the Fourth Circuit's website at www.ca4.uscourts.gov) (nhall) (Entered: 11/27/2012)

Case: 1:12-cv-1199 As of: 03/21/2018 11:32 PM EDT 3 of 10

11/29/2012 11/29/2012 12/03/2012 12/07/2012 12/10/2012 12/19/2012 12/21/2012 12/31/2012
01/02/2013 01/09/2013 01/14/2013 01/25/2013 01/25/2013 01/25/2013 01/25/2013
01/28/2013
01/29/2013
01/29/2013
01/29/2013
01/30/2013
01/30/2013 01/30/2013

12 USCA Case Number 12−8025 4th Circuit, Case Manager P. Stump for 10 Notice of Appeal filed by Alfredo Prieto. (nhall) (Entered: 12/03/2012)
13 Letter To Court From USCA, please transmit the record to this office. (nhall) (Entered: 12/03/2012)
Assembled INITIAL Electronic Record Transmitted to 4CCA re 10 Notice of Appeal. (nhall) (Entered: 12/03/2012)
14 Prisoner Payment: $42.04, receipt number 14683032682. (nhall) (Entered: 12/10/2012)
15 NOTICE of Appearance by Abid Riaz Qureshi on behalf of Alfredo Prieto (Qureshi, Abid) (Entered: 12/10/2012)
17 PRISONER PAYMENT: $ 100.00, receipt number 14683032969 (Attachments: # 1 Cover Letter) (pmil) (Entered: 12/27/2012)
16 PRISONER PAYMENT: $ 9.45, receipt number 14683033001 (Attachments: # 1 Voucher) (pmil) (Entered: 12/27/2012)
18 WAIVER OF SERVICE Returned Executed Harold C. Clarke waiver sent on 11/27/2012, answer due 1/28/2013. (Attachments: # 1 Letter)(rban, ) (Entered: 12/31/2012)
19 NOTICE of Appearance by Richard Carson Vorhis on behalf of Harold C. Clarke, E. Pearson, A. David Robinson (Vorhis, Richard) (Entered: 01/02/2013)
20 Rule 45 Notice To The Plaintiff From USCA re 10 Notice of Appeal. (nhall) (Entered: 01/10/2013)
21 Prisoner Payment: $50.00, receipt number 14683033445. (nhall) (Entered: 01/16/2013)
22 NOTICE of Appearance by Kate Elizabeth Dwyre on behalf of Harold C. Clarke, E. Pearson, A. David Robinson (Dwyre, Kate) (Entered: 01/25/2013)
23 ANSWER to Complaint by Harold C. Clarke, E. Pearson, A. David Robinson.(Dwyre, Kate) (Entered: 01/25/2013)
24 MOTION for Summary Judgment by Harold C. Clarke, E. Pearson, A. David Robinson. (Dwyre, Kate) (Entered: 01/25/2013)
25 Memorandum in Support re 24 MOTION for Summary Judgment filed by Harold C. Clarke, E. Pearson, A. David Robinson. (Attachments: # 1 Affidavit of Eddie L. Pearson)(Dwyre, Kate) (Entered: 01/25/2013)
Notice of Correction re 24 MOTION for Summary Judgment. The filing user has been notified to file a Notice of Hearing Date or a Notice of Waiver of Oral Argument for document number 24. (nhall) (Entered: 01/28/2013)
26 Motion to appear Pro Hac Vice by Anne Hanson and Certification of Local Counsel Abid R. Qureshi Filing fee $ 75, receipt number 0422−3376106. by Alfredo Prieto. (Qureshi, Abid) (Entered: 01/29/2013)
27 Motion to appear Pro Hac Vice by Michael Bern and Certification of Local Counsel Abid R. Qureshi Filing fee $ 75, receipt number 0422−3376122. by Alfredo Prieto. (Qureshi, Abid) (Entered: 01/29/2013)
28 Motion to appear Pro Hac Vice by Katherine Gigliotti and Certification of Local Counsel Abid R. Qureshi Filing fee $ 75, receipt number 0422−3376123. by Alfredo Prieto. (Qureshi, Abid) (Entered: 01/29/2013)
29 Motion to appear Pro Hac Vice by Daniel Levy and Certification of Local Counsel Abid R. Qureshi Filing fee $ 75, receipt number 0422−3377355. by Alfredo Prieto. (Qureshi, Abid) (Entered: 01/30/2013)
30 Notice of Hearing Date set for March 1, 2013 re 24 MOTION for Summary Judgment (Dwyre, Kate) (Entered: 01/30/2013)
31 ORDER granting 26 Motion for Pro hac vice. Signed by District Judge Leonie M. Brinkema on 1/30/13. (nhall) (Entered: 01/31/2013)

Case: 1:12-cv-1199 As of: 03/21/2018 11:32 PM EDT 4 of 10

01/30/2013 01/30/2013 01/31/2013 02/01/2013 02/01/2013 02/01/2013 02/05/2013 02/05/2013 02/06/2013 02/06/2013 02/07/2013
02/08/2013 02/15/2013 02/20/2013 02/20/2013
02/27/2013

32 ORDER granting 27 Motion for Pro hac vice. Signed by District Judge Leonie M. Brinkema on 1/30/13. (nhall) (Entered: 01/31/2013)
33 ORDER granting 28 Motion for Pro hac vice. Signed by District Judge Leonie M. Brinkema on 1/30/13. (nhall) (Entered: 01/31/2013)
34 ORDER granting 29 Motion for Pro hac vice. Signed by District Judge Leonie M. Brinkema on 1/31/13. (nhall) (Entered: 01/31/2013)
35 NOTICE by Harold C. Clarke, E. Pearson, A. David Robinson re 25 Memorandum in Support (Attachments: # 1 Affidavit Eddie L. Pearson)(Dwyre, Kate) (Entered: 02/01/2013)
Set Deadlines as to 24 MOTION for Summary Judgment . Motion Hearing set for 3/1/2013 at 10:00 AM in Alexandria Courtroom 600 before District Judge Leonie M. Brinkema. (clar, ) (Entered: 02/01/2013)
36 Prisoner Payment: $ 33.50, receipt number 14683033796. (nhall) (Entered: 02/04/2013)
37 MOTION to Redact re 1 Complaint, (Unopposed) by Alfredo Prieto. (Qureshi, Abid) (Entered: 02/05/2013)
38 Memorandum in Support re 37 MOTION to Redact re 1 Complaint, (Unopposed) filed by Alfredo Prieto. (Qureshi, Abid) (Entered: 02/05/2013)
40 ORDER of USCA as to 10 Notice of Appeal filed by Alfredo Prieto. The court dismisses this proceeding for failure to prosecute pursuant to Local Rule 45. (nhall) (Entered: 02/08/2013)
41 USCA Mandate re 10 Notice of Appeal. This court's order dismissing this appeal pursuant to Local Rule 45 takes effect today. This constitutes the formal mandate of this court issued pursuant to Rule 41(a) of the Federal Rules of Appellate Procedure. (nhall) (Entered: 02/08/2013)
39 ORDER, it is ORDERED, ADJUDGED AND DECREED as follows: For the reasons set forth in the accompanying supporting Memorandum, Plaintiff's Unopposed Motion {Dkt. No 37] for an Order allowing Plaintiff to redact the personal information of his family from the record in the above−captioned matter is granted and Plaintiff is directed to refile his Complaint with the aforementioned information redacted by Friday, February 15, 2013, and it is further ORDERED that the unredacted complaint and attachments be sealed immediately. Signed by District Judge Leonie M. Brinkema on 2/7/13. (nhall) (Entered: 02/08/2013)
42 Memorandum in Opposition re 24 MOTION for Summary Judgment and Requesting Discovery Pursuant to Fed. R. Civ. P. 56(d) filed by Alfredo Prieto. (Attachments: # 1 Declaration of Michael Bern, # 2 Declaration of Alfredo Prieto)(Qureshi, Abid) (Entered: 02/08/2013)
43 REDACTED COMPLAINT against Harold C. Clarke, E. Pearson, A. David Robinson, filed by Alfredo Prieto. (Attachments: # 1 Attachment 1 Part 1, # 2 Attachment 1 Part 2, # 3 Attachment 2, # 4 Certificate of Service, # 5 Letter, # 6 Report, # 7 Letter, # 8 Envelope)(nhall) (Entered: 02/20/2013)
44 ORDER denying without prejudice 24 Motion for Summary Judgment; that a Scheduling Order be issued forthwith. Signed by District Judge Leonie M. Brinkema on 2/20/2013. (rban, ) (Entered: 02/20/2013)
45 SCHEDULING ORDER: Initial Pretrial Conference set for 3/6/2013 at 11:00 AM in Alexandria Courtroom 400 before Magistrate Judge Ivan D. Davis. Final Pretrial Conference set for 7/18/2013 at 10:00 AM in Alexandria Courtroom 600 before District Judge Leonie M. Brinkema. Discovery due by 7/12/2013. Signed by District Judge Leonie M. Brinkema on 2/20/2013. (Attachments: # 1 Magistrate Consent, # 2 Pretrial Notice)(rban, ) (Entered: 02/20/2013)
46 Discovery Plan by Harold C. Clarke, E. Pearson, Alfredo Prieto, A. David Robinson.(Qureshi, Abid) (Entered: 02/27/2013)

Case: 1:12-cv-1199 As of: 03/21/2018 11:32 PM EDT 5 of 10

02/28/2013
02/28/2013 03/26/2013 04/26/2013 05/03/2013 05/03/2013
05/03/2013 05/06/2013 05/06/2013 05/06/2013 05/07/2013 05/08/2013
05/10/2013
05/10/2013
05/11/2013

47 Order Rule 16(b) Scheduling Order − Pursuant to the Rule 16(b) Conference it is ordered that the Proposed Joint Discovery Plan filed by the parties is approved and shall control discovery to the extent of its application unless further modified by the court. (See Order For Details). Signed by Magistrate Judge Ivan D. Davis on 2/28/13. (nhall) (Entered: 03/01/2013)
48 Prisoner Payment: $ 10.00, receipt number 14683034442. (nhall) (Entered: 03/04/2013)
49 PLRA Filing fee received: $ 10.80, receipt number 14683035021. (rban, ) (Entered: 03/26/2013)
50 PRISONER PAYMENT: $ 10.80, receipt number 14683035747 (pmil) (Entered: 04/30/2013)
51 MOTION to Compel Photography During Inspection by Alfredo Prieto. (Attachments: # 1 Proposed Order)(Qureshi, Abid) (Entered: 05/03/2013)
52 Memorandum in Support re 51 MOTION to Compel Photography During Inspection filed by Alfredo Prieto. (Attachments: # 1 Declaration of Katherine Gigliotti, # 2 Exhibit A−1 to Gigliotti Declaration, # 3 Exhibit A−2 to Gigliotti Declaration, # 4 Exhibit A−3 to Gigliotti Declaration, # 5 Exhibit A−4 to Gigliotti Declaration, # 6 Exhibit A−5 to Gigliotti Declaration, # 7 Exhibit A−6 to Gigliotti Declaration, # 8 Exhibit A−7 to Gigliotti Declaration, # 9 Exhibit A−8 to Gigliotti Declaration, # 10 Exhibit A−9 to Gigliotti Declaration)(Qureshi, Abid) (Entered: 05/03/2013)
53 Notice of Hearing Date set for 5/10/2013 re 51 MOTION to Compel Photography During Inspection (Qureshi, Abid) (Entered: 05/03/2013)
Set Deadlines as to 51 MOTION to Compel Photography During Inspection. Motion Hearing set for 5/10/2013 at 10:00 AM in Alexandria Courtroom 400 before Magistrate Judge Ivan D. Davis. (clar, ) (Entered: 05/06/2013)
MOTIONS REFERRED to Magistrate Judge: Davis. 51 MOTION to Compel Photography During Inspection (clar, ) (Entered: 05/06/2013)
54 Reply to Motion re 51 MOTION to Compel Photography During Inspection filed by Harold C. Clarke, E. Pearson, A. David Robinson. (Dwyre, Kate) (Entered: 05/06/2013)
55 REPLY to Response to Motion re 51 MOTION to Compel Photography During Inspection filed by Alfredo Prieto. (Qureshi, Abid) (Entered: 05/07/2013)
Reset Deadlines as to 51 MOTION to Compel Photography During Inspection. Motion Hearing set for 5/10/2013 at 10:00 AM in Alexandria Courtroom 600 before District Judge Leonie M. Brinkema. (Per LMB chambers) (clar, ) (Entered: 05/08/2013)
56 Minute Entry for proceedings held before District Judge Leonie M. Brinkema:Motion Hearing held on 5/10/2013. Appearance of counsel. Pltf's 51 MOTION to Compel Photography During Inspection is argued and GRANTED. Pltf exhibit #1 booklet filed in open court.(order to follow) (Court Reporter A. Thomson.)(yguy) Modified on 5/10/2013 (yguy). (Entered: 05/10/2013)
57 ORDER: For the reasons stated in open court, it is hereby ORDERED that the plaintiff's Motion to Compel Photography During Inspection [Dkt. No. 51] be and is GRANTED. Signed by District Judge Leonie M. Brinkema on 5/10/13. (yguy) (Entered: 05/10/2013)
58 TRANSCRIPT of proceedings held on 5/10/2013, before Judge Brinkema, Court Reporter Anneliese Thomson, Telephone number 703−299−8595. NOTICE RE REDACTION OF TRANSCRIPTS:The parties have thirty(30) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.vaed.uscourts.gov Transcript may be viewed at the court public terminal or purchased through the court reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER Redaction Request due 6/10/2013. Redacted Transcript Deadline set for

Case: 1:12-cv-1199 As of: 03/21/2018 11:32 PM EDT 6 of 10

05/21/2013 06/21/2013 07/12/2013 07/12/2013 07/15/2013
07/15/2013 07/16/2013 07/17/2013 07/17/2013 07/17/2013 07/17/2013 07/17/2013 07/17/2013 07/17/2013
07/17/2013 07/18/2013
07/18/2013

7/11/2013. Release of Transcript Restriction set for 8/9/2013.(thomson, anneliese) (Entered: 05/11/2013)
59 Prisoner Payment: $ 10.80, receipt number 14683036246. (nhall) (Entered: 05/22/2013)
60 Prisoner Payment: $20.80, receipt number 14683036944. (nhall) (Entered: 06/24/2013)
61 Joint MOTION for Protective Order Containing a Provision for Filing Documents Under Seal by Alfredo Prieto. (Attachments: # 1 Exhibit 1 − Proposed Protective Order)(Qureshi, Abid) (Entered: 07/12/2013)
62 Memorandum in Support re 61 Joint MOTION for Protective Order Containing a Provision for Filing Documents Under Seal filed by Alfredo Prieto. (Attachments: # 1 Exhibit 1 − Confidentiality Agreement)(Qureshi, Abid) (Entered: 07/12/2013)
Notice of Correction re 61 Joint MOTION for Protective Order Containing a Provision for Filing Documents Under Seal. The filing user has been notified to file a Notice of Hearing Date or a Notice of Waiver of Oral Argument. (rban, ) (Entered: 07/15/2013)
63 NOTICE by Alfredo Prieto re 61 Joint MOTION for Protective Order Containing a Provision for Filing Documents Under Seal of Waiver of Oral Argument (Qureshi, Abid) (Entered: 07/15/2013)
72 PROTECTIVE ORDER re: handling and labeling of confidential material. (See Order For Details). Signed by District Judge Leonie M. Brinkema on 7/16/13. (nhall) (Entered: 07/18/2013)
64 Exhibit List by Harold C. Clarke, E. Pearson, A. David Robinson.. (Attachments: # 1 Operating Procedure Number 830.2, # 2 Department of Corrections SISP Institutional Rules & Regulations)(Dwyre, Kate) (Entered: 07/17/2013)
65 Witness List by Harold C. Clarke, E. Pearson, A. David Robinson. (Dwyre, Kate) (Entered: 07/17/2013)
66 Statement of Undisputed Facts by Harold C. Clarke, E. Pearson, A. David Robinson. (Dwyre, Kate) (Entered: 07/17/2013)
67 MOTION to Seal Information Designated as Confidential by Alfredo Prieto. (Attachments: # 1 Proposed Order)(Qureshi, Abid) (Entered: 07/17/2013)
68 Memorandum in Support re 67 MOTION to Seal Information Designated as Confidential filed by Alfredo Prieto. (Attachments: # 1 Exhibit 1 − Confidentiality Agreement)(Qureshi, Abid) (Entered: 07/17/2013)
69 Rule 26 Disclosure by Alfredo Prieto. (Attachments: # 1 Exhibit A − Exhibit List, # 2 Exhibit B − Witness List, # 3 Exhibit C − Statement of Uncontested Facts (Submitted for Filing Under Seal))(Qureshi, Abid) (Entered: 07/17/2013)
70 ORDER. It is therefore, ORDERED that Plaintiff's Motion, and the same hereby is, GRANTED; and it is further ORDERED that the designated information shall be SEALED pursuant to Local Civil Rule 5 and shall remained SEALED until further Order of the Court. (See Order For Details). Signed by District Judge Leonie M. Brinkema on 7/17/13. (nhall) (Entered: 07/18/2013)
71 Sealed Document re 69 Rule 26 Disclosure. (nhall) (Entered: 07/18/2013)
73 Minute Entry for proceedings held before District Judge Leonie M. Brinkema:Final Pretrial Conference held on 7/18/2013. All parties appeared by telephone conference. Exhibits/Witness lists have been filed & exchanged. Trial date not set at this time. Summary Judgment Motion Hearing set for 9/6/2013 at 10:00 AM in Alexandria Courtroom 600 before District Judge Leonie M. Brinkema. (Court Reporter A. Thomson.)(yguy) (Entered: 07/18/2013)
74 MOTION for Summary Judgment by Alfredo Prieto. (Attachments: # 1 Proposed Order)(Qureshi, Abid) (Entered: 07/18/2013)

Case: 1:12-cv-1199 As of: 03/21/2018 11:32 PM EDT 7 of 10

07/18/2013
07/18/2013 07/18/2013 07/19/2013 07/19/2013 07/22/2013 07/26/2013 07/26/2013
08/01/2013
08/08/2013 08/09/2013 08/09/2013 08/12/2013 09/06/2013

75 Memorandum in Support re 74 MOTION for Summary Judgment (Redacted) filed by Alfredo Prieto. (Attachments: # 1 Declaration of Daniel Levy, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18, # 20 Exhibit 19, # 21 Exhibit 20, # 22 Exhibit 21, # 23 Exhibit 22, # 24 Exhibit 23, # 25 Exhibit 24, # 26 Exhibit 25, # 27 Exhibit 26, # 28 Exhibit 27, # 29 Exhibit 28, # 30 Exhibit 29, # 31 Exhibit 30, # 32 Exhibit 31, # 33 Exhibit 32, # 34 Exhibit 33, # 35 Exhibit 34, # 36 Exhibit 35, # 37 Exhibit 36, # 38 Exhibit 37)(Qureshi, Abid) (Entered: 07/18/2013)
76 Notice of Hearing Date re 74 MOTION for Summary Judgment (Qureshi, Abid) (Entered: 07/18/2013)
78 Sealed Document re 75 Memorandum in Support,,,. (Attachments: # 1 Exhibit 10, # 2 Exhibit 11, # 3 Exhibit 17, # 4 Exhibit 18, # 5 Exhibit 20, # 6 Exhibit 21, # 7 Exhibit 22, # 8 Exhibit 23, # 9 Exhibit 24, # 10 Exhibit 25, # 11 Exhibit 26, # 12 Exhibit 27, # 13 Exhibit 28, # 14 Exhibit 30)(nhall) (Entered: 07/19/2013)
Set Deadlines as to 74 MOTION for Summary Judgment . Motion Hearing set for 9/6/2013 at 10:00 AM in Alexandria Courtroom 600 before District Judge Leonie M. Brinkema. (clar, ) (Entered: 07/19/2013)
77 Redacted Document to 71 Sealed Document (Exhibit C to Rule 26(a)(3) Disclosures) by Alfredo Prieto. (Qureshi, Abid) (Entered: 07/19/2013)
Notice of Correction re 77 Redacted Document. The filing user DOES NOT need to refile a signed copy of the document as previously directed.(nhall) Text Modified on 7/26/2013 (nhall). (Entered: 07/22/2013)
79 MOTION for Summary Judgment by Harold C. Clarke, E. Pearson, A. David Robinson. (Dwyre, Kate) (Entered: 07/26/2013)
80 Memorandum in Support re 79 MOTION for Summary Judgment filed by Harold C. Clarke, E. Pearson, A. David Robinson. (Attachments: # 1 Exhibit 1 − Affidavit of Keith W. Davis, # 2 Exhibit 2 − Excerpts from the deposition of Harold W. Clarke, # 3 Exhibit 3 − Excerpts from the deposition of A. David Robinson, # 4 Exhibit 4 − Excerpts from the deposition of Keith Davis)(Dwyre, Kate) (Entered: 07/26/2013)
81 RESPONSE to Motion re 74 MOTION for Summary Judgment filed by Harold C. Clarke, E. Pearson, A. David Robinson. (Attachments: # 1 Exhibit 1 − Affidavit of Keith W. Davis, # 2 Exhibit 2 − Deposition Excerpts of Harold W. Clarke, # 3 Exhibit 3 −Deposition Excerpts of Arnold David Robinson, # 4 Exhibit 4 − Deposition Excerpts of Keith Davis, # 5 Exhibit 5 − Deposition Excerpts of James Parks)(Dwyre, Kate) (Entered: 08/01/2013)
82 REPLY to Response to Motion re 74 MOTION for Summary Judgment filed by Alfredo Prieto. (Attachments: # 1 Declaration of Daniel Levy, # 2 Exhibit 38, # 3 Exhibit 39, # 4 Exhibit 40, # 5 Exhibit 41, # 6 Exhibit 42)(Qureshi, Abid) (Entered: 08/08/2013)
83 RESPONSE in Opposition re 79 MOTION for Summary Judgment filed by Alfredo Prieto. (Attachments: # 1 Declaration of Daniel Levy, # 2 Exhibit 43, # 3 Exhibit 44, # 4 Exhibit 45, # 5 Exhibit 46, # 6 Exhibit 47, # 7 Exhibit 48, # 8 Exhibit 49, # 9 Exhibit 50, # 10 Exhibit 51)(Qureshi, Abid) (Entered: 08/09/2013)
84 Sealed Document EXHIBIT 51 re 83 Response in Opposition to Motion,. (klau, ) (Entered: 08/12/2013)
85 Reply to 83 Response in Opposition to Motion, filed by Harold C. Clarke, E. Pearson, A. David Robinson. (Vorhis, Richard) (Entered: 08/12/2013)
86 Minute Entry for proceedings held before District Judge Leonie M. Brinkema:Motion Hearing held on 9/6/2013. Appearance of counsel. Pltf's 74 MOTION for Summary Judgment and defts' 79 MOTION for Summary Judgment were argued and TAKEN UNDER ADVISEMENT. (Court Reporter A. Thomson.)(yguy) (Entered: 09/06/2013)

Case: 1:12-cv-1199 As of: 03/21/2018 11:32 PM EDT 8 of 10

09/06/2013 09/09/2013 09/12/2013 09/20/2013
11/12/2013 11/12/2013
11/13/2013 11/25/2013 11/25/2013 11/25/2013 11/26/2013 11/26/2013
12/12/2013 12/12/2013

87 NOTICE by Alfredo Prieto of Filing Deposition Transcripts (Attachments: # 1 Exhibit A − Deposition of Harold W. Clarke, # 2 Exhibit B − Deposition of James Parks)(Qureshi, Abid) (Entered: 09/06/2013)
88 Letter for Clarification of Status of Post−Conviction Proceedings. (Qureshi, Abid) (Entered: 09/09/2013)
89 Letter of Status. (Vorhis, Richard) (Entered: 09/12/2013)
90 TRANSCRIPT of proceedings held on 9/6/2013, before Judge Brinkema, Court Reporter Anneliese Thomson, Telephone number 703−299−8595. NOTICE RE REDACTION OF TRANSCRIPTS:The parties have thirty(30) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.vaed.uscourts.gov Transcript may be viewed at the court public terminal or purchased through the court reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER Redaction Request due 10/21/2013. Redacted Transcript Deadline set for 11/20/2013. Release of Transcript Restriction set for 12/19/2013.(thomson, anneliese) (Entered: 09/20/2013)
91 MEMORANDUM OPINION re: 74 MOTION for Summary Judgment by Alfredo Prieto, 79 MOTION for Summary Judgment by Harold C. Clarke, E. Pearson, A. David Robinson. (See Memorandum Opinion For Details). Signed by District Judge Leonie M. Brinkema on 11/12/13. (nhall) (Entered: 11/13/2013)
92 ORDER for the reasons stated in the accompanying Memorandum Opinion, granting 74 Motion for Summary Judgment; denying 79 Motion for Summary Judgment and it is hereby ORDERED that judgment be ans is entered in favor of plaintiff. (See Order For Details). Signed by District Judge Leonie M. Brinkema on 11/12/13. (nhall) (Entered: 11/13/2013)
93 CLERK'S JUDGMENT in favor of the Plaintiff, Alfredo Prieto and against the Defendants, Harold C. Clarke, A. David Robinson and E. Pearson. (Entered by Clerk pursuant to FRCP 58). (nhall) (Entered: 11/13/2013)
94 MOTION for Attorney Fees by Alfredo Prieto. (Attachments: # 1 Proposed Order)(Qureshi, Abid) (Entered: 11/25/2013)
95 Memorandum in Support re 94 MOTION for Attorney Fees filed by Alfredo Prieto. (Attachments: # 1 Declaration of Abid Qureshi, # 2 Attachemnt 1 to Declaration of Abid Qureshi, # 3 Attachemnt 2 to Declaration of Abid Qureshi, # 4 Attachemnt 3 to Declaration of Abid Qureshi)(Qureshi, Abid) (Entered: 11/25/2013)
96 Notice of Hearing Date set for 12/20/2013 re 94 MOTION for Attorney Fees (Qureshi, Abid) (Entered: 11/25/2013)
Set Deadlines as to 94 MOTION for Attorney Fees . Motion Hearing set for 12/20/2013 at 10:00 AM in Alexandria Courtroom 600 before District Judge Leonie M. Brinkema. (clar, ) (Entered: 11/26/2013)
97 ORDER. Accordingly, it is hereby ORDERED that the hearing on plaintiff's Petition for Attorneys' Fees and Costs [Dkt. No. 94] be and is advanced to 10:00 a.m. on Thursday, December 19, 2013. (See Order For Details). Reset Deadlines as to 94 MOTION for Attorney Fees. Motion Hearing set for 12/19/2013 at 10:00 AM in Alexandria Courtroom 600 before District Judge Leonie M. Brinkema. Signed by District Judge Leonie M. Brinkema on 11/26/13. (nhall) (Entered: 11/27/2013)
98 Response to 94 MOTION for Attorney Fees filed by Harold C. Clarke, E. Pearson, A. David Robinson. (Dwyre, Kate) (Entered: 12/12/2013)
100 NOTICE OF APPEAL as to 91 Memorandum Opinion, 92 Order on Motion for Summary Judgment, by Harold C. Clarke, E. Pearson, A. David Robinson. Filing fee $ 505, receipt number 14683040680. (Attachments: # 1 Receipt)(nhall) (Additional attachment(s) added on 12/18/2013: # 2 Letter, # 3 Letter) (nhall). (Entered: 12/18/2013)

Case: 1:12-cv-1199 As of: 03/21/2018 11:32 PM EDT 9 of 10

12/13/2013
12/18/2013 12/19/2013 12/20/2013 12/20/2013 12/23/2013 12/27/2013 12/30/2013
12/31/2013 01/10/2014
01/10/2014 01/14/2014

99 ORDER granting 94 Motion for Attorney Fees, and it is hereby ORDERED that plaintiff is entitled to attorneys' fees in the amount of $151,734.39 and costs in the amount of $13,661.60 for a total award of $165,395.99; and it is further ORDERED that the hearing scheduled for Thursday, December 19, 2013, be and is CANCELLED. (See Order For Details). Signed by District Judge Leonie M. Brinkema on 12/13/13. (nhall) (Entered: 12/16/2013)
101 Transmission of Notice of Appeal to US Court of Appeals re 100 Notice of Appeal (All case opening forms, plus the transcript guidelines, may be obtained from the Fourth Circuit's website at www.ca4.uscourts.gov) (nhall) (Entered: 12/18/2013)
102 USCA Case Number 13−8021 4th Circuit, Case Manager RJ Warren for 100 Notice of Appeal, filed by Harold C. Clarke, E. Pearson, A. David Robinson. (rban, ) (Entered: 12/19/2013)
103 MOTION to Stay re 92 Order on Motion for Summary Judgment,,, 99 Order on Motion for Attorney Fees, Motion for Temporary Stay Pending Appeal by Harold C. Clarke, E. Pearson, A. David Robinson. (Dwyre, Kate) (Entered: 12/20/2013)
104 Memorandum in Support re 103 MOTION to Stay re 92 Order on Motion for Summary Judgment,,, 99 Order on Motion for Attorney Fees, Motion for Temporary Stay Pending Appeal filed by Harold C. Clarke, E. Pearson, A. David Robinson. (Dwyre, Kate) (Entered: 12/20/2013)
Notice of Correction re 103 MOTION to Stay re 92 Order on Motion for Summary Judgment,,, 99 Order on Motion for Attorney Fees, Motion for Temporary Stay Pending Appeal. The filing user has been notified to file a Notice of Hearing Date or a Notice of Waiver of Oral Argument.(gwalk, ) (Entered: 12/23/2013)
105 Notice of Hearing Date set for January 10, 2014 re 103 MOTION to Stay re 92 Order on Motion for Summary Judgment,,, 99 Order on Motion for Attorney Fees, Motion for Temporary Stay Pending Appeal (Dwyre, Kate) (Entered: 12/27/2013)
Set Deadlines as to 103 MOTION to Stay re 92 Order on Motion for Summary Judgment,,, 99 Order on Motion for Attorney Fees, Motion for Temporary Stay Pending Appeal. Motion Hearing set for 1/10/2014 at 10:00 AM in Alexandria Courtroom 600 before District Judge Leonie M. Brinkema. (klau, ) (Entered: 12/30/2013)
106 Opposition to 103 MOTION to Stay re 92 Order on Motion for Summary Judgment,,, 99 Order on Motion for Attorney Fees, Motion for Temporary Stay Pending Appeal filed by Alfredo Prieto. (Attachments: # 1 Declaration of Katherine Gigliotti, # 2 Exhibit A to Gigliotti Declaration)(Qureshi, Abid) (Entered: 12/31/2013)
107 Minute Entry for proceedings held before District Judge Leonie M. Brinkema:Motion Hearing held on 1/10/2014. Appearance of counsel. Deft's 103 MOTION to Stay re 92 Order on Motion for Summary Judgment,,, 99 Order on Motion for Attorney Fees, Motion for Temporary Stay Pending Appeal is argued and DENIED. (order to follow) (Court Reporter A. Thomson.)(yguy) (Entered: 01/10/2014)
108 ORDER: For the reasons stated in open court, it is hereby ORDERED that defendants' Motion for Temporary Stay Pending Appeal [Dkt. No. 103] be and is DENIED.. Signed by District Judge Leonie M. Brinkema on 1/10/14. (yguy) (Entered: 01/10/2014)
109 TRANSCRIPT of proceedings held on 1/10/2014, before Judge Leonie M. Brinkema, Court Reporter Anneliese Thomson, Telephone number 703−299−8595. NOTICE RE REDACTION OF TRANSCRIPTS:The parties have thirty(30) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.vaed.uscourts.gov Transcript may be viewed at the court public terminal or purchased through the court reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER Redaction Request due 2/13/2014. Redacted Transcript Deadline set for 3/17/2014. Release of Transcript Restriction set for 4/14/2014.(thomson, anneliese) (Entered: 01/14/2014)

Case: 1:12-cv-1199 As of: 03/21/2018 11:32 PM EDT 10 of 10

01/27/2014 02/04/2014
02/06/2014 02/10/2014 02/12/2014
02/12/2014 02/12/2014 02/20/2014
03/10/2015 03/10/2015
03/25/2015 04/07/2015
04/15/2015 10/05/2015 06/07/2017 06/07/2017 06/12/2017

110 MOTION for Extension of Time to Appeal by Harold C. Clarke, E. Pearson, A. David Robinson. (Vorhis, Richard) (Entered: 01/27/2014)
111 ORDER. Accordingly, it is hereby ORDERED that defendants have until February 7, 2014, to file their Notice of Appeal of the award of attorneys' fees entered on December 13, 2013. (See Order For Details). Signed by District Judge Leonie M. Brinkema on 2/4/14. (nhall) (Entered: 02/06/2014)
112 NOTICE OF APPEAL as to 99 Order on Motion for Attorney Fees by Harold C. Clarke, E. Pearson, A. David Robinson (Dwyre, Kate) Text Modified on 2/12/2014 To Reflect Correct Event Choice (nhall). (Entered: 02/06/2014)
113 Filing fee: $ 505, receipt number 14683041714. (Attachments: # 1 Letter) (nhall) (Entered: 02/12/2014)
114 NOTICE OF APPEAL as to 99 Order on Motion for Attorney Fees, by Harold C. Clarke, E. Pearson, A. David Robinson. Filing fee $ 505. (nhall) Text Modified on 2/12/2014 To Reflect Duplicate Filing For Document #112, As Unable To Link Transmittal Sheet And Forward To 4th Circuit Due To Incorrect Initial Event Choice(nhall). (Entered: 02/12/2014)
115 Transmission of Notice of Appeal to US Court of Appeals re 114 Notice of Appeal, (All case opening forms, plus the transcript guidelines, may be obtained from the Fourth Circuit's website at www.ca4.uscourts.gov) (nhall) (Entered: 02/12/2014)
116 USCA Case Number 14−6226 4th Circuit, Case Manager RJ Warren for 114 Notice of Appeal, filed by Harold C. Clarke, E. Pearson, A. David Robinson. (rban, ) (Entered: 02/12/2014)
117 ORDER of USCA as to 114 Notice of Appeal, filed by Harold C. Clarke, E. Pearson, A. David Robinson, 100 Notice of Appeal, filed by Harold C. Clarke, E. Pearson, A. David Robinson. Upon consideration of submissions relative to the motion to consolidate, the court grants the motion and consolidates Case No. 13−8021 and Case 14−6226. (rban, ) (Entered: 02/20/2014)
118 PUBLISHED Opinion of USCA, decided re 114 Notice of Appeal, 100 Notice of Appeal, Reversed. (rban, ) (Entered: 03/10/2015)
119 USCA JUDGMENT as to 114 Notice of Appeal, filed by Harold C. Clarke, E. Pearson, A. David Robinson, 100 Notice of Appeal, filed by Harold C. Clarke, E. Pearson, A. David Robinson. In accordance with the decision of this court, the judgment of the district court is reversed. This judgment shall take effect upon issuance of this court's mandate in accordance with FRAP 41. (rban, ) (Entered: 03/10/2015)
120 Appeal Remark re 114 Notice of Appeal, 100 Notice of Appeal,: The mandate is stayed pending further order of this court. (rban, ) (Entered: 03/25/2015)
121 ORDER of USCA as to 114 Notice of Appeal, filed by Harold C. Clarke, E. Pearson, A. David Robinson, 100 Notice of Appeal, filed by Harold C. Clarke, E. Pearson, A. David Robinson. The court denies the petition for rehearing en banc. (rban, ) (Entered: 04/07/2015)
122 USCA Mandate re 114 Notice of Appeal, 100 Notice of Appeal. The judgment of this court, entered 3/10/2015, takes effect today. This constitutes the formal mandate of this court issued pursuant to Rule 41(a) of FRAP. (rban, ) (Entered: 04/15/2015)
123 Letter to the court requesting documentation. (dvanm, ) (Entered: 10/05/2015)
124 Letter to the court. (dvanm, ) (Entered: 06/07/2017)
125 PAYMENT FOR COPY REQUEST: $ 2.00, receipt number 14683066504 filed by Elbert Smith (dest, ) (Entered: 06/13/2017)
126 ORDER− it is hereby ORDRED that the Clerk return the $2.00 money order to Mr. Smith. Signed by District Judge Leonie M. Brinkema on 6/12/2017. (see Order for further details)(dest, )(copy sent as directed in the Order) (Entered: 06/13/2017)