PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-8021

ALFREDO PRIETO,

Plaintiff - Appellee,

v.

HAROLD CLARKE, Director; A. DAVID ROBINSON, Deputy Director; 

E. PEARSON, Warden,

Defendants - Appellants.

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

TONI V. BAIR; F. WARREN BENTON; KATHLEEN M. DENNEHY; BRIAN 

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

RIVELAND; REGINALD A. WILKINSON; JEANNE WOODFORD,

Amici Supporting Appellee.

No. 14-6226

ALFREDO PRIETO,

Plaintiff - Appellee,

v.

HAROLD CLARKE, Director; A. DAVID ROBINSON, Deputy Director; 

E. PEARSON, Warden,

Defendants - Appellants.

-------------------------
2

TONI V. BAIR; F. WARREN BENTON; KATHLEEN M. DENNEHY; BRIAN 

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

RIVELAND; REGINALD A. WILKINSON; JEANNE WOODFORD,

Amici Supporting Appellee.

Appeals from the United States District Court for the Eastern 

District of Virginia, at Alexandria. Leonie M. Brinkema, 

District Judge. (1:12-cv-01199-LMB-IDD)

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

Before MOTZ, SHEDD, and WYNN, Circuit Judges.

Reversed by published opinion. Judge Motz wrote the majority 

opinion, in which Judge Shedd joined. Judge Wynn wrote a 

dissenting opinion.

ARGUED: Stuart Alan Raphael, OFFICE OF THE ATTORNEY GENERAL OF 

VIRGINIA, Richmond, Virginia, for Appellants. Michael E. Bern, 

LATHAM & WATKINS LLP, Washington, D.C., for Appellee. ON BRIEF: 

Mark R. Herring, Attorney General of Virginia, Cynthia E. 

Hudson, Chief Deputy Attorney General, Linda L. Bryant, Deputy 

Attorney General, Public Safety & Enforcement, Richard C. 

Vorhis, Senior Assistant Attorney General, Kate E. Dwyre, 

Assistant Attorney General, Trevor S. Cox, Deputy Solicitor 

General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, 

Virginia, for Appellants. Abid R. Qureshi, Katherine M. 

Gigliotti, Daniel I. Levy, LATHAM & WATKINS LLP, Washington, 

D.C., for Appellee. Rebecca K. Glenberg, Hope R. Amezquita, 

AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF VIRGINIA, Richmond, 

Virginia; Amy Fettig, Helen Vera, AMERICAN CIVIL LIBERTIES UNION 

NATIONAL PRISON PROJECT, Washington, D.C., for Amici Curiae.
3

DIANA GRIBBON MOTZ, Circuit Judge:

The district court held that the procedural Due Process 

rights of a capital prisoner were violated by a state policy 

requiring his confinement, prior to execution, in a single cell

with minimal visitation and recreation opportunities. The court 

ordered state officials either to alter the policy or to improve 

these conditions. The officials appeal and, for the reasons 

that follow, we reverse.

I.

Upon conviction for two capital murders and receipt of two

death sentences, Alfredo Prieto was incarcerated by the 

Commonwealth of Virginia at Sussex I State Prison in Waverly, 

Virginia. Prieto is one of eight Virginia convicts imprisoned 

after receipt of the death penalty. All eight capital offenders 

are housed in the same portion of Sussex I, known widely as 

Virginia’s “death row.” Appellant’s Br. 11-13.

A written state policy mandates that all persons sentenced 

to death in Virginia be confined on death row while awaiting 

execution. See Virginia Dep’t. of Corr. Operating Procedure 

830.2(D)(7), 460.1A (I). Unlike other prisoners, these 

prisoners are not subject to security classification or 

assignment to any alternative confinement. Id. Inmates on 

death row live in separate single cells, with visitation and 
4

recreation restrictions more onerous than those imposed on other 

inmates.

After incarceration on Virginia’s death row for nearly six 

years as he pursued post-conviction challenges, Prieto brought 

this 42 U.S.C. § 1983 action pro se. He alleged that his 

confinement on death row violated his procedural Due Process and 

Eighth Amendment rights and sought injunctive relief. The 

district court dismissed the Eighth Amendment claim but found 

that Prieto had stated a plausible Due Process claim and 

appointed counsel for him.1 Following discovery, the parties

filed cross motions for summary judgment.

The district court granted Prieto’s motion. The court

noted that the conditions on Virginia’s death row were “eerily 

reminiscent” of those held in Wilkinson v. Austin, 545 U.S. 209 

(2005), to implicate a liberty interest protected by the Due 

Process Clause. See Prieto v. Clarke, No. 12-1199, 2013 WL 

6019215, at *6 (E.D. Va. Nov. 12, 2013). Reasoning that because 

these conditions were “uniquely severe” and pervasive compared 

to the conditions of the general prison population, the court 

concluded that Prieto had established a Due Process liberty 

interest in avoiding them and that Prieto’s automatic and 

 1 Prieto initially appealed the district court’s dismissal 

of his Eighth Amendment claim, but we dismissed the appeal for 

failure to prosecute and Prieto does not challenge that decision 

in the present appeal.
5

permanent assignment to death row did not afford him 

constitutionally adequate process. Id. at *7-8.

The district court then issued an injunction ordering 

Virginia prison officials either to “improve [Prieto]’s 

conditions of confinement” or provide Prieto with “an 

individualized classification determination” for his prison 

housing, like the classification procedure afforded by state law 

to non-capital offenders. Id. In a subsequent order, the court 

awarded Prieto all costs and attorney’s fees. The prison 

officials appeal both orders; we consolidated the cases on 

appeal.

II.

The Due Process Clause of the Fourteenth Amendment provides 

that no state shall “deprive any person of life, liberty, or 

property, without due process of law.” U.S. Const. amend. XIV. 

To state a procedural due process violation, a plaintiff must 

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

demonstrate deprivation of that interest without due process of 

law. Because we conclude that Prieto cannot establish a 

protected liberty interest, we need not consider the 

sufficiency-of-process requirement.

The Supreme Court has long recognized that a prisoner may 

have a state-created liberty interest in certain prison 
6

confinement conditions, entitling him to procedural Due Process 

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

Wolff v. McDonnell, 418 U.S. 539 (1974).2 But the Court has been

equally clear that if no state statute, regulation, or policy 

creates such a liberty interest, a prisoner cannot “invoke the 

procedural protections of the Due Process Clause.” Meachum, 427 

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

notion that any grievous loss visited upon a person by the State 

is sufficient” to require constitutionally adequate procedure. 

Id.

In the late 70s and early 80s the Court broadly defined

state-created interests, holding that any mandatory state 

directive created a state law liberty interest triggering 

procedural Due Process protections. See, e.g., Hewitt v. Helms, 

459 U.S. 460 (1983); Greenholtz v. Inmates of Neb. Penal and 

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

 2 The Court has also held that such a liberty interest can 

arise from the Constitution itself but only rarely has 

recognized such an interest. See, e.g., Vitek v. Jones, 445 

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

avoiding involuntary psychiatric treatment and transfer to 

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

contends that the Constitution standing alone provides a liberty 

interest entitling him to relief. Even if he had preserved this 

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

472, 480 (1995) (“The Due Process Clause standing alone confers 

no liberty interest in freedom from state action taken within 

the sentence imposed.” (internal quotations and citation 

omitted)).
7

resultant “[p]arsing” of state statutes to find rights by 

“negative implication,” the Court corrected course in Sandin v. 

Conner, 515 U.S. 472, 481-82 (1995). There it added a second 

requirement for establishing a liberty interest warranting 

constitutionally adequate process. Sandin holds that, while a 

state statute or policy may “create liberty interests” giving

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

such an interest “imposes atypical and significant hardship on 

the inmate in relation to the ordinary incidents of prison 

life.” Id. at 484.

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

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

expressly reaffirmed that in determining if a prisoner has 

established a state-created liberty interest in certain 

conditions of confinement, the “threshold question” is whether 

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

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

policies could be read to create such an interest, to garner the 

protection of the Due Process Clause an inmate must also 

 3 The Second Circuit has so dubbed and then applied this

analysis first established in Sandin. See Tellier v. Fields,

280 F.3d 69, 80 (2d Cir. 2000). Contra Chappell v. Mandeville, 

706 F.3d 1052, 1064 (9th Cir. 2013) (bypassing the first prong 

in this two-part analysis); but see id. at 1065-66 (Graham, J., 

concurring in the judgment) (labeling majority’s departure from 

this “two-part inquiry” a “radical change in due process 

jurisprudence”).
8

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

relation to the ordinary incidents of prison life,’” impose “an 

atypical and significant hardship.” Id. at 223 (quoting Sandin, 

515 U.S. at 484).

When the Wilkinson Court applied this two-prong analysis, 

the parties agreed as to the first prong. That is, the State 

and the inmates agreed on the “threshold question,” that written 

Ohio prison classification regulations controlled the prison 

assignment, and so confinement conditions, of all inmates. Id.

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

prong: whether these regulations created a “liberty interest in 

avoiding restrictive conditions of confinement.” Id. at 223. 

Reiterating Sandin’s teaching, Wilkinson noted that the 

“touchstone of th[is] inquiry . . . is not the language of the 

regulations regarding those conditions,” but whether their 

application imposed “atypical and significant hardship . . . in 

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

(quoting Sandin, 515 U.S. at 484) (internal quotation marks 

omitted). Assignment to and confinement at the supermax was 

found to constitute an “atypical and significant hardship,”

because all other prisons in which the inmates could have been

housed under Ohio’s classification regulations had markedly 

less-onerous confinement conditions. See id. at 223-24. And, 

for this reason, the Court concluded that “under any plausible 
9

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

a liberty interest in their avoidance.” Id. at 223-24.4

Prieto properly recognizes the importance of Sandin and 

Wilkinson to his challenge. But his analysis, which the

district court adopted, rests on interrelated, critical 

misunderstandings of those cases. Prieto treats Sandin and 

Wilkinson as establishing a new regime in which atypical and 

harsh confinement conditions, in and of themselves, give rise to 

a protected liberty interest, regardless of whether any state 

law or policy creates the possibility of avoiding such 

conditions. Moreover, Prieto fails to recognize that he cannot 

satisfy either of the two requirements for a protected, statecreated liberty interest specified in Sandin and Wilkinson. We 

address these issues in turn.

III.

We begin with Prieto’s apparent belief that Sandin and

Wilkinson hold that atypical and harsh confinement conditions,

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

interest. Noting that Wilkinson held that the conditions at the 

Ohio supermax imposed an atypical hardship under “any plausible 

 4 Wilkinson went on to hold that a new Ohio law provided the 

inmates with constitutionally sufficient process. Wilkinson, 

545 U.S. at 228-29.
10

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

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

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

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

rise to a protected liberty interest misreads Sandin, Wilkinson, 

and the cases that preceded them, and overlooks our binding 

circuit precedent.

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

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

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

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

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

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

to the due process principles . . . correctly established in 

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

did do was reject some dicta in Meachum suggesting that any 

mandatory language in a regulation “created an absolute right to 

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

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

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

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

finding a basis for an interest or expectation in state 

regulations, an inmate must then demonstrate that denial of this
11

state-created interest resulted in an “atypical and significant 

hardship” to him. Id. at 484.

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

Wilkinson. For Wilkinson does not hold that harsh or atypical

prison conditions in and of themselves provide the basis of a

liberty interest giving rise to Due Process protection. Rather, 

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

at the supermax under the state’s classification regulations 

combined with these harsh and atypical conditions that triggered 

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

Wilkinson Court simply applied the two-prong approach 

established in Sandin. Thus Wilkinson neither eliminates the 

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

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

Moreover, Prieto ignores our own binding precedent 

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

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

a prisoner seeking to bring a procedural due process claim to 

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

 5 If Prieto’s reading of Sandin and Wilkinson were correct, 

a state would “create” a liberty interest simply by imposing 

harsh confinement conditions. This outcome would not bring the 

Court’s precedent in line with Meachum, as Sandin sought to do. 

Rather, it would reject the express teaching in Meachum that a 

state-created liberty interest does not arise simply from 

“conditions of confinement having a substantial adverse impact 

on the prisoner.” 427 U.S. at 224.
12

to demonstrate a liberty interest meriting procedural due 

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

interest that can arise either from the Constitution itself or 

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

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

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

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

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

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

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

interest created by state laws or policies” (internal quotation 

marks and citation omitted)).6

In addition to espousing a theory contrary to Sandin,

Wilkinson, and our binding circuit precedent in Lovelace and 

Burnette, Prieto’s approach would collapse a prison conditions 

 6 Contrary to Prieto’s contention, a recent Fifth Circuit 

case lends him no support. See Wilkerson v. Goodwin, 774 F.3d 

845 (5th Cir. 2014). There, the court held that an inmate’s 

almost forty-year incarceration in solitary confinement, 

assertedly in violation of a state classification system, gave 

rise to a liberty interest protected by due process. Id. at 

851-57. Prieto points out that the court recognized that the 

existence of a state-created interest turns on the nature of the 

deprivation “resulting from a state regulation,” rather than the 

“language of the regulation.” Id. at 852 (quotation marks and 

citation omitted). Yes, but in so concluding, the Fifth Circuit

expressly acknowledged, as we hold, that to give rise to a due 

process challenge, a deprivation must “result[] from” the 

alleged violation of a state regulation. Id. Unlike Wilkerson, 

Prieto can point to no deprivation resulting from the violation 

of a state regulation.
13

Due Process claim into an Eighth Amendment claim. The Eighth 

Amendment’s prohibition on cruel and unusual punishment 

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

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

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

and unnecessary infliction of pain,” or are “grossly 

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

any penological purpose” fall squarely within the ambit of the 

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

Amendment requires a court to examine whether prison conditions 

impose cruel and unusual punishment. The Due Process clause 

requires a court to determine whether a state has provided 

prisoners with adequate process in applying prison regulations 

and policies. Treating Sandin and Wilkinson as holding that 

confinement conditions alone trigger a Due Process claim --

without regard to whether a state policy or regulation provides 

the basis to challenge such conditions -- would elide that 

critical distinction.

Prieto thus errs in contending that harsh and atypical 

confinement conditions in and of themselves give rise to a 

liberty interest in their avoidance.7

 7 Prieto’s contention that Virginia officials waived the 

argument that he must point to an entitlement in state 

regulations or statutes to establish a Due Process claim is 

(Continued)
14

IV.

Of course, regardless of this initial error, Prieto could

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

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

with an expectation of avoiding the conditions of his 

confinement and demonstrate that those conditions are harsh and 

atypical in relation to the ordinary incidents of prison life.

Prieto does neither.

A.

The record is clear that under Virginia law, a capital 

offender has no expectation or interest in avoiding confinement 

on death row. A written Virginia policy requires all capital 

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

any possibility of reclassification. See Virginia Dep’t of 

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

 

meritless. The officials contended before the district court, 

albeit briefly, that a liberty interest must be “created by 

state laws or policies” and that Prieto could not establish a 

right to reclassification because one does not exist under state 

law. Defs’ Mem. in Supp. of Mot. Summ. J. 8, ECF No. 80; Defs’ 

Resp. to Pls’ Mot. Summ. J. 6, ECF No. 81. The district court 

clearly understood and indeed stated that the “sole issue” 

before it was whether Prieto’s “automatic and permanent” 

placement in the restrictive conditions of confinement present 

in Virginia’s death row violates Prieto’s Fourteenth Amendment 

due process rights, and that this analysis required an initial 

determination of “whether a liberty interest exists.” Prieto, 

2013 WL 6019215, at *4.
15

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

reclassification will be completed.”).

This state policy forecloses any Due Process expectation or 

right on the part of Virginia capital offenders to any other 

housing assignment. For the corollary to the requirement that a 

state-created liberty interest must be anchored in a state 

policy is that when a state policy expressly and unambiguously 

disclaims a particular expectation, an inmate cannot allege a 

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

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

consideration for non-solitary confinement when the State’s 

established written policy expressly precludes such 

consideration.

Prieto apparently regards the written Virginia policy as 

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

procedural Due Process claim.

B.

Nor can Prieto establish that the conditions of his 

confinement impose an atypical and significant hardship in 

relation to the ordinary incidents of prison life.8 Prieto 

 8 Of course, a court need only reach the atypicality 

question if an inmate has been deprived of a state-created 

liberty interest. Here there has been no deprivation, because 

there is no state-created liberty interest. Nevertheless, we 

(Continued)
16

recognizes, as he must, that the Supreme Court has yet to 

identify the baseline for determining whether a state regulation 

imposes such an atypical and significant hardship. But he 

raises several arguments in support of his view that the 

conditions of his confinement on death row satisfy the 

atypicality requirement.

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

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

the ordinary incidents of prison life are established by the 

conditions imposed on the general prison population.” 

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

confinement on death row impose an atypical hardship “relative 

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

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

those in Wilkinson, and thus must impose an atypical and 

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

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

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

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

atypicality baseline is the “general prison population.”

Beverati involved inmates initially subjected to thirty days of 

 

address the atypicality inquiry because it is Prieto’s principal 

contention and was the basis for the district court’s holding.
17

disciplinary segregation but thereafter retained in segregation 

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

respect to those inmates in disciplinary segregation, whose 

conditions of confinement were set by Maryland (not Virginia) 

law, did we describe the baseline as the conditions those 

particular inmates could expect to “experience as an ordinary 

incident of prison life.” Id. at 503. What the inmates in 

Beverati could expect to experience and what Prieto can expect 

to experience differ significantly. It should come as no 

surprise that the baseline does, too. Moreover, we have never 

interpreted Beverati to establish the rule Prieto suggests. 

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

atypicality baseline should be determined “‘in relation to the 

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

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

stand for the broad proposition Prieto would like it to.

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

for assessing his conditions of confinement are the “ordinary 

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

instructive. None of the parties in Wilkinson even suggested 

that “ordinary prison conditions” in other Ohio prisons provided 

the proper baseline for the dangerous offenders assigned to the 

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

and the inmates acknowledged that they had clashed in the lower 
18

courts as to the appropriate baseline for determining 

atypicality. But no party contended that the “ordinary prison 

conditions” of the general prison population constituted the 

appropriate baseline for assessing the confinement conditions of 

those dangerous prisoner plaintiffs. See generally Transcript 

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

04-495).9

Further, neither Wilkinson nor Beverati involved a discrete 

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

reason were required by state law to be confined under 

particular conditions.10 Rather, Wilkinson and Beverati found 

confinement conditions that were not required by a particular 

conviction and sentence to impose an atypical and significant 

 9 Ohio suggested that the baseline be the security 

classification just below that which renders Ohio prisoners 

eligible for housing at the supermax. The inmates argued that 

the baseline should be segregated confinement units at other 

Ohio prisons. See Transcript at 6-7, 52.

10 Contrary to our dissenting colleague’s suggestion, 

confinement of the inmates in Wilkinson to the supermax was not 

the “automatic[]” result “of being convicted of certain 

offenses.” Conviction of certain egregious crimes did result in 

automatic consideration for assignment to the supermax, but not 

automatic confinement there. Wilkinson, 545 U.S. at 216. In 

stark contrast to the case at hand, in Wilkinson a detailed 

written state policy governed assignment in every case. That 

policy set forth a highly individualized assignment procedure 

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

offense, criminal history, or gang affiliation) but [] subject 

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

Id. at 215.
19

hardship. These holdings certainly do not mean that similar 

conditions pose an atypical and significant hardship where, as 

here, state law does mandate that a particular conviction and 

sentence require confinement under such conditions.

When determining the baseline for atypicality, a court must 

consider whether the confinement conditions are imposed on a 

prisoner because of his conviction and sentence. For conditions 

dictated by a prisoner’s conviction and sentence are the 

conditions constituting the “ordinary incidents of prison life”

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

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

recently explained, conditions “will differ depending on a 

particular inmate’s conviction and the nature of nonpunitive 

confinement routinely imposed on inmates serving comparable 

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

2012).

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

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

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

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

the confinement conditions to be imposed on offenders convicted 

of a certain crime and receiving a certain sentence, those 

confinement conditions are, by definition, the “ordinary 

incidents of prison life” for such offenders. Virginia law 
20

mandates that all persons convicted of capital crimes are, upon 

receipt of a death sentence, automatically confined to death 

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

for those inmates, including Prieto, include housing on death 

row.

This conclusion follows from the importance the Supreme 

Court has attached to the sentence of conviction in assessing 

possible Due Process violations. In Meachum, the Court rejected 

the contention that “burdensome conditions” imposed by transfer 

to a maximum security facility provided the basis for a Due 

Process claim because those conditions fell “within the normal 

limits or range of custody which the conviction has authorized 

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

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

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

found significant the fact that the challenged confinement 

conditions fell “within the expected perimeters of the sentence 

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

Court explained in Sandin and repeated in Wilkinson, a prisoner 

does not establish a state-created liberty interest in avoiding 

disciplinary segregated confinement if such confinement “does 

not present a dramatic departure from the basic conditions of 

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

Wilkinson, 545 U.S. at 223.
21

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

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

deprivation imposes a significant or atypical hardship on him, 

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

to which he is entitled. Virginia imposes death row confinement

on capital offenders because of the crime they have committed 

and the sentence they have received. That confinement is the 

expected -- indeed mandated -- confinement condition flowing 

from the conviction and sentence. State law defines the 

perimeters of confinement conditions, and here state law is 

pellucid: tethered to the death sentence in Virginia is 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 district court, perhaps correctly, 

described the isolation that characterizes Virginia’s death row 

as “dehumanizing”. Prieto, 2013 WL 6019215, at *6.11 But the 

 11 We note, however, that the conditions on Virginia’s death 

row are apparently not altogether unlike those imposed by some 

other states on their capital offenders. A study cited by one 

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

Cunningham & Mark P. Vigen, Death Row Inmate Characteristics, 

Adjustment, and Confinement: A Critical Review of the 

Literature, 20 Behav. Sci. & L. 191, 204 (2002).
22

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

correctional officials have broad latitude to set prison 

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

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

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

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

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

that “correctional officials . . . must have substantial 

discretion to devise reasonable solutions to the problems they 

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

1515 (2012).

Of course, the Supreme Court could prescribe more rigorous 

judicial review of state statutes and regulations governing 

prison confinement conditions. But it has not. Concerned with

eliminating “disincentives for States to ‘codify’ prison 

management procedures,” the Sandin Court adopted an approach 

that would encourage States to codify their policies regarding 

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

approach, reaffirmed in Wilkinson, provides inmates and prison 

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

also permits a given state to codify procedures establishing 

very restrictive confinement conditions. The judgment that this 

trade-off strikes the correct balance between the dictates of 

the Due Process Clause and the pressures on state correctional 
23

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

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

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

from Sandin and Wilkinson, a procedural Due Process claim like 

that offered by Prieto fails.

For the foregoing reasons, we reverse the judgment of the 

district court.12

REVERSED

 12 Because 42 U.S.C. § 1988(2) authorizes the award of 

attorney’s fees only to a “prevailing party,” we must also 

reverse the order awarding costs and attorney’s fees to Prieto.
24

WYNN, Circuit Judge, dissenting:

A unanimous Supreme Court told us in no uncertain terms 

that prisoners have a liberty interest in avoiding indefinite, 

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

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

determining whether such a liberty interest exists, we must 

focus on the “the nature of those conditions themselves in 

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

(quotation marks omitted). 

The Supreme Court found the conditions in Wilkinson

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

atypical and significant hardship within the correctional 

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

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

conditions could be imposed—but not without procedural 

safeguards such as notice and an opportunity to be heard. 

This case presents conditions of confinement strikingly 

similar to, and arguably more egregious than, those in 

Wilkinson. I would therefore follow Wilkinson and find 

Plaintiff Alfred Prieto entitled to at least some modicum of 

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

Wilkinson unnecessarily narrowly in signing off on Prieto’s 

automatic, permanent, and unreviewable placement in the highly 
25

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

respectfully dissent. 

I.

A.

“The Fourteenth Amendment’s Due Process Clause protects 

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

those who seek to invoke its procedural protection must 

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

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

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

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

avoiding restrictive conditions of confinement was not the 

language of regulations “but the nature of those conditions 

themselves in relation to the ordinary incidents of prison 

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

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

an analysis of the conditions themselves. 

Nowhere in Wilkinson did the Supreme Court parse the 

language of any law or regulation or otherwise suggest that 

written words governing the conditions of confinement are the 

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

Court analyzed the conditions themselves and then held that 

“taken together they impose an atypical and significant hardship 
26

within the correctional context. It follows that [the 

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

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

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

issue with typical conditions. And finding the conditions at 

issue atypically harsh, the Court held that a prisoner subjected 

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

before he is subjected to them.1

Several conditions caught the Supreme Court’s eye in 

Wilkinson: the solitary nature of the confinement and near 

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

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

potentially indefinite period of the placement—with only an 

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

disqualification of inmates otherwise eligible for parole. See

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

totality of the conditions and held that “taken together they 

impose an atypical and significant hardship within the 

correctional context.” Id. at 224. 

 1 The Supreme Court did not, however, hold that the 

conditions themselves were unconstitutional and needed to be 

changed; that would be a separate, Eighth Amendment inquiry. 

Nor would I hold so here, not least because, as in Wilkinson, 

that is not before us. 
27

In this case, the conditions of confinement essentially 

mirror those in Wilkinson. Prieto is deprived of almost all 

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

inmates. His conditions of confinement are largely devoid of 

stimuli: He must remain in his small single cell for twentythree hours a day, except for one hour five days per week, when 

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

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

indefinite: No opportunity for review of the placement exists. 

In some respects, Prieto’s conditions are actually more 

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

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

Wilkinson, Prieto has no opportunity for group programming or 

religious services. And Prieto has fewer opportunities for 

exercise.

One condition at issue in Wilkinson but absent here is 

disqualification for parole. Specifically, inmates otherwise 

eligible for parole became ineligible when placed into the 

restrictive supermax confinement at issue in Wilkinson. 545 

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

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

eligible for parole but for their supermax confinement. And I 

agree with the Seventh Circuit that any contention that 

Wilkinson turned on the (in)eligibility for parole constitutes 
28

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

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

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

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

and significant hardship under any plausible baseline.” 

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

therefore felt no need to identify the baseline to which the 

conditions should be compared. Id. 

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

confinement, which are strikingly similar to those in Wilkinson, 

when taken together “impose[] an atypical and significant 

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

Court did not need to identify a particular baseline to reach 

such a conclusion, neither do I.

B.

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

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

with Sandin and Wilkinson. For example, the majority opinion 

understands Sandin and Wilkinson as holding that a prisoner must 

first show that a written prison regulation gives rise to a 

protected liberty interest before reaching the atypical and 

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

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

in avoiding even extreme hardships so long as a state simply 
29

removes all delineating prison regulations or expressly 

disclaims any liberty expectation. Yet it was precisely this 

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

promulgate procedures for prison management” that the Supreme 

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

The majority opinion also “re-organizes” the Supreme 

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

only “threshold question” the Supreme Court identified in 

Wilkinson was whether “the inmates establish[ed] a 

constitutionally protected liberty interest”—not the sentence 

fragment from a different paragraph that the majority opinion 

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

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

that the risk of erroneous placement coupled with the harsh 

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

Yet in Wilkinson, the Supreme Court considered the erroneous 

placement issue only after it had already held that a liberty 

interest in avoiding the harsh conditions existed, as a factor 

for determining whether the procedures in place sufficed. 545 

U.S. at 224-25. 

The majority opinion places much emphasis on the fact that 

because all capital offenders in Virginia automatically land on 

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

thus no due process rights. See ante at 14-15. In this 
30

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

Supreme Court noted that some defendants there were 

automatically assigned to the restrictive supermax confinement 

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

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

excluded those inmates from the ambit of its holding or 

otherwise suggested that because of their automatic assignment, 

they had no liberty interest in avoiding the restrictive 

supermax conditions. 

Instead, the Supreme Court broadly stated that “the 

touchstone of the inquiry into the existence of a protected, 

state-created liberty interest in avoiding restrictive 

conditions of confinement is not the language of regulations 

regarding those conditions but the nature of those conditions 

themselves ‘in relation to the ordinary incidents of prison 

life.’” Id. at 221 (citation omitted). In my view, the 

majority opinion’s myopic search of a written regulation betrays 

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

undergirding the liberty protected by the Due Process Clause.” 

Sandin, 515 U.S. at 483.

I agree with the majority opinion that the Supreme Court 

has been anything other than consistent in its approach to 

prisoner due process cases. The Supreme Court suggested that 

prisoner liberty interests exist whenever something is 
31

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

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

function of mandatory verbiage in written regulations. See, 

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

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

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

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

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

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

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

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

Finally, the majority opinion suggests that an analysis 

like mine bucks controlling circuit precedent, and particularly 

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

case does not present the obstacle the majority opinion 

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

failure to address the plaintiff’s due process claim and 

remanded the matter to the district court for a determination 

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

assuming that one could not square my view with Lovelace, 

anything Lovelace said about the due process claim seems to be 

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

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

Moreover, to the extent Lovelace parts ways with Wilkinson, we 
32

certainly “have no authority to overrule a Supreme Court 

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

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

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

that we are not to parse written regulations but rather that the 

“touchstone of the inquiry into the existence of a protected, 

state-created liberty interest in avoiding restrictive 

conditions of confinement is not the language of regulations 

regarding those conditions but the nature of those conditions 

themselves in relation to the ordinary incidents of prison 

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

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

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

atypical and significant hardship within the correctional 

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

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

Wilkinson, 545 U.S. at 223.

That being said, there is no necessary tension between the 

existence of a liberty interest in avoiding restrictive 

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

penological interests or the fact that we are dealing with a 

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

“harsh conditions may well be necessary and appropriate in light 

of the danger that high-risk inmates pose both to prison 
33

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

not diminish our conclusion that the conditions give rise to a 

liberty interest in their avoidance.” Id. 

II.

Once a liberty interest is established, the question then 

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

procedural safeguards sufficed to protect the liberty interest 

in Wilkinson, the Supreme Court looked to three factors: 

“First, the private interest that will be affected by 

the official action; second, the risk of an erroneous 

deprivation of such interest through the procedures 

used, and the probable value, if any, of additional or 

substitute procedural safeguards; and finally, the 

Government’s interest, including the function involved 

and the fiscal and administrative burdens that the 

additional or substitute procedural requirement would 

entail.” 

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

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

“informal, nonadversary procedures” informing inmates of the 

factual basis for their restrictive placement, a fair 

opportunity for rebuttal, and regular review sufficed to comport 

with due process. Id. at 229. 

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

vain—because Virginia affords capital offenders no process. 

Virginia tries to offer up its sentencing procedures as all the 

due process required. Of course, the same could be said of all 
34

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

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

result in two defendants who commit the same crime and possess 

the same aggravating factors receiving vastly different 

conditions of confinement and procedural safeguards. The 

conviction and sentence alone, therefore, do not represent a 

principled manner for determining due process rights.2

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

over whether Virginia needs to provide minimalist procedural 

safeguards like those in Wilkinson to less than ten prisoners—

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

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

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

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

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

required to comport with due process would be informal notice 

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

procedural safeguards, in my view, Prieto should have.

 2 The majority opinion purports that it does “not hold, or 

even suggest, that differences in the nature of a conviction or 

the length of a sentence give rise to different liberty 

interests.” Ante at 19. But allowing Virginia to confine 

Prieto automatically, based on his death sentence, to highly 

restrictive conditions for the duration of his incarceration (so 

far, almost seven years) and without any opportunity for review 

does just that.
35

III.

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

judgment and, accordingly, respectfully dissent.