PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-6411

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

Plaintiff - Appellant,

v.

BRYAN P. STIRLING, Acting Director of the South Carolina 

Department of Corrections,

Defendant - Appellee.

Appeal from the United States District Court for the District of 

South Carolina, at Beaufort. David C. Norton, District Judge. 

(9:12-cv-03493-DCN)

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

Before MOTZ, KEENAN, and THACKER, Circuit Judges.

Affirmed in part, reversed in part, and remanded by published 

opinion. Judge Thacker wrote the opinion, in which Judge Motz 

and Judge Keenan joined.

ARGUED: Emily K. Merki, GEORGETOWN UNIVERSITY LAW CENTER, 

Washington, D.C., for Appellant. Andrew Lindemann, DAVIDSON & 

LINDEMANN, P.A., Columbia, South Carolina, for Appellee. ON 

BRIEF: Steven H. Goldblatt, Center Director, Ruthanne M. 

Deutsch, Supervising Attorney, Lola A. Kingo, Supervising 

Attorney, Ryan H. Sellinger, Student Counsel, Appellate 

Litigation Program, GEORGETOWN UNIVERSITY LAW CENTER, 

Washington, D.C., for Appellant. 
2

THACKER, Circuit Judge:

Lumumba Kenyatta Incumaa (“Appellant”) is a member of 

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

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

serving a sentence of life imprisonment without the possibility 

of parole in a prison operated by the South Carolina Department 

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

participation in a 1995 prison riot with other Five Percenters, 

he was placed in solitary confinement security detention. He 

has remained in solitary confinement for 20 years, despite not

having committed a single disciplinary infraction during that 

time.

With this suit, Appellant challenges his confinement 

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

the Religious Land Use and Institutionalized Persons Act 

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

imposing a substantial burden on an inmate’s religious exercise 

unless it proves that the restriction furthers compelling 

interests by the least restrictive means. In this regard, 

Appellant argues that Department policy required him to renounce 

 1 Appellant originally sued Department Director William 

Robert Byars Jr. in his official capacity. The current 

Department Director, Bryan Stirling, replaced Byars as the 

defendant. Because Stirling was sued in his official capacity, 

we will refer to him and Appellee synonymously.
3

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

before the Department will release him from solitary 

confinement. On the second ground, Appellant claims that 

Appellee violated his right to procedural due process. 

The district court granted Appellee’s motion for 

summary judgment. We affirm the portion of the district court 

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

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

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

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

confinement, we hold, amounts to atypical and significant 

hardship in relation to the general population and implicates a 

liberty interest in avoiding security detention. Furthermore, 

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

process for determining which inmates are fit for release from 

security detention meets the minimum requirements of procedural 

due process.

I.

A.

The Five Percenters and Appellant’s Violent History 

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

other religious groups “in the Islamic sphere” that “preach[] a 
4

message of black empowerment.” J.A. 91, 92.2 The Five 

Percenters also have a history of violence in South Carolina 

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

the Five Percenters. Appellant maintains the NOGE is a 

religious group. Although Appellee does not contest Appellant’s

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

the Department’s regulations treat the Five Percenters like a

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

themselves denied that their organization is a religion. See

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

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

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

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

Department employees hostage and held them for 11 hours during 

an intense standoff with police.4 Four law enforcement officers 

 2 Citations to the “J.A.” refer to the Joint Appendix filed 

by the parties in this appeal.

3 In In re Long Term Administrative Segregation of Inmates 

Designated as Five Percenters, we observed that a federal 

intelligence summary concluded the Five Percenters were “a 

radical Islamic sect/criminal group that is often boldly racist 

in its views, prolific in its criminal activities, and operates 

behind a facade of cultural and religious rhetoric.” 174 F.3d 

464, 467 (4th Cir. 1999) (internal quotation marks omitted).

4 In Incumaa v. Ozmint, we noted that Appellant pleaded 

guilty to “three counts of hostage-taking and two counts of 

assault and battery with intent to kill in relation to his 

involvement in the prison riot”; his conviction was vacated on 

(Continued)
5

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

1995, Appellee designated the Five Percenters as a Security 

Threat Group (“STG”).5

B.

Prison Regulation of STGs and their Members

1.

Assignment of STG Members to Special Management Unit

When the Department’s Special Investigations Unit 

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

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

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

membership, the Department’s Institutional Classification 

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

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

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

placement in security detention. According to Department 

Investigator Elbert Pearson, 

If an individual has been validated as 

an STG member, but has not committed or been 

implicated in any disciplinary infractions 

 

ineffective-assistance-of-counsel grounds. 507 F.3d 281, 283 

n.1 (4th Cir. 2007).

5 The Five Percenters were implicated in at least 484 

incidents “of violence and other disruptive conduct” within the 

Department prison network from 2003 to 2013. J.A. 220, 222.
6

or STG activities, that individual would 

typically, although not always, receive a 

classification of Validated-GP . . . . 

If an individual has been validated as 

an STG member, and has committed 

disciplinary infractions . . . that 

individual would typically receive a 

classification of Validated-SD . . . .

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

detention, is not a punishment for disciplinary infractions but

is used to protect inmates and staff and to maintain prison 

order. 

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

it then determines where to place the inmate and what 

restrictions to impose upon him. The Department maintains two 

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

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

restrictive Maximum Security Unit, which houses inmates who have 

engaged in violent behavior or have committed serious rules 

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

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

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

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

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

“inmates charged with . . . assault on a staff member and/or 
7

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

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

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

Due to his role in the 1995 riot, Appellant was

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

placed in the Maximum Security Unit. His assignment to security 

detention was not a punishment for participating in the riot but 

was generally intended “to maintain and control the inmate and 

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

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

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

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

SMU -- other validated Five Percenters are permitted to reside 

in the general population and openly maintain their affiliation 

with the group. During the decades Appellant has spent in 

security detention, he has not committed a single disciplinary 

infraction.

 6 Although the Department regulations only mention two 

behavior levels, the ICC’s classification notices imply that a 

Level III also exists. See Incumaa v. Ozmint, 507 F.3d at 283-

84 (discussing Level III classification).
8

2.

Conditions in SMU versus General Population

Appellant claims the SMU is substantially more 

restrictive than the general population. The Department does 

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

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

• permitted to leave his cell for recreation 

only one hour approximately ten times per 

month;

• allowed only a ten-minute shower three times 

per week;

• “stripped [sic] searched, made to lift and 

shake his genitalia, made to bend over, 

spread his buttocks in the direction of the 

officer so that he may look at [Appellant’s] 

anus, then made to squat and cough, and 

afterwards hand cuffed behind his back every 

time he leaves the cell, even to the shower 

where he is locked in a single occupancy 

shower stall”;

• served smaller portions of food than inmates 

in the general population receive;

• required to eat all meals in his cell;

• limited to property that can fit into a box 

that is 15 by 12 by 10 inches;

• “denied all canteen privileges”;

• denied “education and vocational 

opportunities”; and 

• “denied the opportunity to receive mental 

health treatment for his diagnosed mental 

health condition.”
9

J.A. 23-24. 

3.

Review of SMU Detention

Department regulations require the ICC to review each 

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

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

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

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

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

from the STG list.

To renounce his affiliation, the inmate “fills out a 

detailed questionnaire about why he or she wants to renounce 

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

questionnaire and determines whether the inmate’s attempt to 

renounce STG affiliation is sincere. Consequently, the ICC may 

choose to reject an inmate’s attempt to renounce his 

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

 7 Pearson diverges from the letter of the Department 

regulations don this point to some extent. The Department 

regulations do not mention the renunciation policy; they only 

state that “[i]nmates who have clear disciplinary records and 

who comply with unit procedures, inmate grooming and sanitation 

standards will be considered for . . . release from SMU.” J.A. 

138. However, because we must interpret the evidence in the 

light most favorable to Appellant -- and because Appellee 

apparently concedes this point -- we will assume that the 

renunciation policy is a feature of the Department regulations.
10

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

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

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

be reassigned to the general population given his involvement as 

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

With regard to reclassifications based on “behavior 

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

Inmates who have clear disciplinary 

records and who comply with unit 

procedures . . . will be considered for 

advancement from Level I to Level II or 

release from SMU. . . . The decision 

to release an inmate from 

SMU . . . will be based upon the 

inmate’s overall disciplinary record 

and compliance with all Agency policies 

and procedures while in SMU.

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

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

Pursuant to Department regulations, after each 30-day review 

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

classification decision to the inmate within 48 hours. However, 

the regulations do not require the ICC to provide any factual 

basis for its decision to maintain an inmate at the same 

behavior level or to recommend against release from the SMU.

The record contains copies of the ICC’s classification 

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

February to November 2012 -- of his solitary confinement. Each 
11

notice is nearly identical to the next and simply states that 

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

II.” J.A. 95-103. All provide the same perfunctory, fiveletter justification for this recommendation: “STG-SD.” Id. 

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

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

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

Memoranda documenting review of Appellant’s confinement in the 

SMU every 30 days from May 2008 to May 2013.8 In total, there 

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

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

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

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

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

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

of the basis for Appellant’s continued confinement.

According to Department regulations, the ICC’s 

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

 8 Although prison officials claim that Appellant’s custody 

has been reviewed every 30 days since his transfer to the SMU, 

the Department did not produce the Staff Memoranda from, 2005 to 

2007. 

9 Although 30-day status reviews are entered as “Warden’s 

Review” on the Staff Memoranda, it appears from the record that 

the ICC conducts these evaluations on the warden’s behalf. 

Where they discuss review for release from the SMU, the 

(Continued)
12

review the ICC’s decision regarding confinement unless the 

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

grievance system” or the ICC recommends release from security 

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

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

139.

Appellant filed a grievance on April 21, 2009,

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

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

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

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

section marked “action requested,” Appellant requested reform of 

 

Department regulations emphasize the ICC’s role, not the 

warden’s: “The decision to release an inmate from SMU can be 

recommended by the ICC,” and “[t]he ICC . . . ha[s] the 

authority to reduce or advance the inmate’s Level as it deems 

appropriate based on the inmate’s behavior while housed in SMU.” 

J.A. 138, 139. Additionally, the regulations state that “the 

Warden must review the status of all inmates in continuous 

confinement for more than 30 days,” but direct staff to document 

reviews on a form entitled “SCDC Form 19-30, SMU Institutional 

Classification Committee Review.” Id. at 138 (internal 

quotation marks omitted).

10 While the Department regulations, read literally, only 

permit inmates to appeal the ICC’s decision to place them in 

security detention, Appellant was allowed to file a grievance 

regarding the ICC’s decision that he remain in the SMU. 

Therefore, for the purposes of this case we will interpret the 

regulations as authorizing inmates already in the SMU to oppose 

a classification review decision through the grievance system.
13

the STG policy “so that classifications are made on an 

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

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

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

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

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

be changed” by the administrators of the prison because policy 

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

Accordingly, the warden denied Appellant’s grievance. Appellant 

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

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

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

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

[the Five Percenters].” Id. at 14.

C.

Procedural History

On December 12, 2012, Appellant filed a pro se 

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

the Department’s renunciation policy violated his rights under 

RLUIPA. Appellant also claimed that, throughout his detention 

in the SMU, the Department violated his procedural due process 

rights by failing to conduct meaningful review of whether he was 

fit for release to the general population. Appellee moved for 
14

summary judgment on both of these claims. The district court 

granted the motion. Though the court assumed that the NOGE

constituted a religion -- and apparently determined that 

Appellant’s confinement imposed a substantial burden on his 

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

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

compelling interests” and therefore did not violate RLUIPA. 

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

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

procedural rights were not violated because he failed to prove 

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

an atypical and substantial hardship” -- a prerequisite to

establishing a due process right to review for release from 

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

appeal. 

Appellant argues that a reasonable juror may find that 

Department policy places a substantial burden on his exercise of 

religion because it conditions release from the SMU on 

renouncing his NOGE faith. He also argues that the district 

court erred in concluding that the conditions he has experienced

for the last 20 years in solitary confinement do not constitute 

atypical and significant hardship in relation to the ordinary 

incidents of prison life.
15

II.

“We review the district court’s grant of summary 

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

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

judgment if the proffered evidence is such that a rational 

factfinder could only find for the government” and it is 

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

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

review the entire record, evaluating the evidence in the light 

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

500, 503 (4th Cir. 1997).

III.

A.

RLUIPA Claim

In relevant part, RLUIPA states:

No government shall impose a substantial 

burden on the religious exercise of a person 

residing in or confined to an 

institution . . . , even if the burden 

results from a rule of general 

applicability, unless the government 

demonstrates that the imposition of the 

burden on that person--

(1) is in furtherance of a compelling 

governmental interest; and

(2) is the least restrictive means of 

furthering that compelling governmental 

interest.
16

42 U.S.C. § 2000cc-1(a).11

By enacting RLUIPA, Congress afforded prisoners freeexercise rights similar to those enjoyed by the free population. 

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

prescribes a shifting burden of proof for inmate religious 

exercise claims. The inmate bears the initial burden to 

demonstrate that the prison’s policy exacts a substantial burden 

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

burden shifts to the government to prove its policy furthers a 

compelling governmental interest by the least restrictive means.

See 42 U.S.C. § 2000cc-2(b).

A prison regulation may impose a “substantial burden” 

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

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

one hand, and abandoning one of the precepts of her

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

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

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

the regulation places the person between a rock and a hard 

place. 

 11 As a “governmental entity created under the authority of 

a State,” the Department “fit[s] within [the] definition” of 

“government.” Smith v. Ozmint, 578 F.3d 246, 250 (4th Cir. 

2009).
17

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

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

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

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

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

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

this practice “fit squarely within the accepted definition of

substantial burden” because it forced the inmate to choose 

between following the edicts of his religion and losing 

privileges. Id. (internal quotation marks omitted). 

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

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

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

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

between punishment and violating his beliefs “substantially 

burden[ed] his religious exercise.” Id. 

Here, Appellant argues that the Department policy

similarly imposes a substantial burden on his religious exercise 

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

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

far more favorable living conditions of the general population, 
18

on the other.” Appellant’s Br. 49.12 For purposes of this case, 

we assume without deciding that the Five Percenters are a 

religious group entitled to protection. This argument fails 

because the Department Policy forces no such choice upon him. 

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

avenues for securing release from the SMU, and Department Policy 

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

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

acknowledges that other Five Percenters are permitted to reside 

in the general population and openly maintain their affiliation. 

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

make him renounce his religion is further undermined by the fact 

that Department officials permit Appellant to possess NOGE 

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

population. 

Appellant notes that he has not committed any 

disciplinary infractions since the 1995 riot and points us to 

one entry in the Staff Memoranda where an SMU staff member 

mentioned that Appellant refused to renounce his NOGE 

affiliation. He argues that this evidence demonstrates that 

 12 Appellant mentions in passing that SMU regulations also 

prevent him from celebrating “Honor Days,” the NOGE’s highest 

holidays, but the only substantial burden he argues in his brief 

relates to the Department renunciation policy. Appellant’s Br. 

48.
19

renunciation must be a prerequisite to returning to the general 

population. Although “administrative segregation may not be 

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

would be unreasonable to conclude that the ICC has no plausible

reason other than Appellant’s refusal to renounce his NOGE 

affiliation for continuing to view Appellant as a threat to 

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

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

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

with due deference to the experience and expertise of prison and 

jail administrators” (internal quotation marks omitted)). 

In sum, no reasonable factfinder could conclude that 

Appellant’s renunciation of his faith is a prerequisite to 

returning to the general population. Appellant has failed to 

demonstrate that the Department’s policy imposes a substantial 

burden on his religion. Therefore, we conclude that Appellee 

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

B.

Due Process Claim

Appellant also presses a procedural due process claim. 

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

we determine whether Appellant had a protectable liberty 

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

687 F.3d 171, 180 (4th Cir. 2012). Second, we then evaluate 
20

whether the Department failed to afford Appellant minimally 

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

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

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

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

judgment as to Appellant’s procedural due process claim.

1.

Liberty Interest

Although “[l]awful incarceration brings about the 

necessary withdrawal or limitation of many privileges and 

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

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

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

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

courts must take cognizance of the valid constitutional claims 

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

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

have a liberty interest in avoiding confinement conditions that

impose “atypical and significant hardship on the inmate in 

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

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

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

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

Wilkinson, and our precedent “do[] not hold that harsh or 
21

atypical prison conditions in and of themselves provide the 

basis of a liberty interest giving rise to Due Process 

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

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

avoiding onerous or restrictive confinement conditions “arise[s] 

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

mandating periodic review). Id. (internal quotation marks 

omitted). Because there is uncontroverted evidence that the

Department policy here mandates review of Appellant’s security 

detention every 30 days, we have no trouble concluding that 

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

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

whether Appellant established that the conditions he experienced

during his two decades in solitary confinement present atypical 

and significant hardship in relation to the ordinary incidents 

of prison life. 

Whether confinement conditions are atypical and 

substantially harsh “in relation to the ordinary incidents of 

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

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

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

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

prison hardship is atypical and significant, and the condition 

or combination of conditions or factors . . . requires case by 
22

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

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

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

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

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

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

inmates in Beverati could expect to experience and what Prieto 

can expect to experience differ significantly. . . . For 

conditions dictated by a prisoner’s conviction and sentence are 

the conditions constituting the ‘ordinary incidents of prison 

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

established, we determine whether the prison conditions impose

atypical and substantial hardship in relation to that norm. See

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

impose atypical and significant hardship in relation to the 

ordinary incidents of prison life).

a.

Normative Baseline for Atypicality

Although some of our sister circuits read our decision 

in Beverati to imply that the typical conditions in the general 

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

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

held that the general prison population is not always the basis 

for comparison -- the “baseline for atypicality” may shift 
23

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

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

we conclude that the general population is the baseline for 

atypicality for inmates who are sentenced to confinement in the 

general prison population and have been transferred to security 

detention while serving their sentence.

In Beverati, the general population was the baseline. 

There, inmates sentenced to the Maryland Penitentiary’s general

population were administratively segregated in solitary 

confinement because they possessed escape paraphernalia.13 The 

inmates complained that Maryland prison officials deprived them 

of procedural due process. To determine whether “the conditions 

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

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

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

“applicable prison regulations indicate[d] that the conditions 

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

those experienced by inmates in the general population,” we 

concluded that the inmates did not possess a liberty interest in 

avoiding administrative segregation. Id.

 13 One of the Beverati inmates was originally placed in 

disciplinary detention, but he was transferred to administrative 

segregation after serving his disciplinary sentence. See 120 

F.3d at 501-02. 
24

But in Prieto, we held that using the general 

population to gauge the ordinary incidents of prison life for a 

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

a Virginia inmate on death row claimed a liberty interest in 

avoiding the “undeniably severe” conditions of death row

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

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

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

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

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

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

conditions on death row were atypical and significantly harsh

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

a liberty interest. We reversed. Because “Virginia law 

mandate[d] that all persons convicted of capital crimes 

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

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

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

liberty interest in avoiding confinement to death row. See

Prieto, 780 F.3d at 253.

The “conditions dictated by a prisoner’s conviction 

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

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

780 F.3d at 254 (emphasis supplied) (quoting Sandin, 515 U.S. at 
25

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

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

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

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

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

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

[regarding] the confinement conditions to be imposed on 

offenders convicted of a certain crime and receiving a certain 

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

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

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

confinement conditions must fall within the “‘expected 

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

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

population inmate’s confinement expectations radiate from the 

conditions that inmates in the general population normally 

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

could expect to experience and what Prieto can expect to 

experience differ significantly. It should come as no surprise 

that the baseline does, too.”).

Although the general prison population is not the 

relevant atypicality baseline in all cases, it is the touchstone 

in cases where the inmate asserting a liberty interest was 

sentenced to confinement in the general population and later 
26

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

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

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

liberty interest protecting against a 30-day assignment to 

segregated confinement because it did not present a dramatic 

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

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

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

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

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

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

beyond that contemplated by the original sentence imposed can be 

imposed only with procedures satisfying due process.”).

Because it is uncontroverted that Appellant was 

sentenced to the general population, the general population is

the basis for our comparison here.

 14 We previously took this approach in Walsh v. Corcoran, 

No. 98-7853, 2000 WL 328019, at *7 (4th Cir. Mar. 29, 2000) 

(unpublished) (“[I]n Beverati, our determination that 

administrative segregation did not present an atypical or 

significant hardship involved using the incidents of prison life 

that flowed from the inmates’ original sentences as a baseline 

for comparison with conditions in administrative segregation.”).
27

b.

Atypical and Significant Hardship

 Having identified the general population as the 

atypicality baseline, we turn to whether Appellant has met his 

burden of proof. Appellant must demonstrate his solitary 

confinement in security detention constitutes atypical and 

significant hardship in relation to the general population. See

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

of proof on the inmate).

i.

To understand which confinement conditions are 

atypical and significant in comparison to the general 

population, we turn to Beverati and Wilkinson.

The Beverati inmates complained that the conditions of 

their six-month administrative segregation amounted to atypical 

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

Prison regulations specified that although inmates on 

administrative segregation were confined to solitary cells, they 

were permitted at least one hour of recreation outside their 

cells seven days per week, just as the general population 

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

segregation also had substantially the same access to prison 

services and educational programming as the general population. 
28

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

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

inmates in administrative segregation experienced more onerous 

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

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

indicate[d] that the conditions in administrative segregation 

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

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

offered evidence that conditions in administrative segregation 

were more burdensome “than those imposed on the general prison 

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

that exposure to them for six months” implicated a liberty 

interest. Id. at 504.

Eight years after Beverati, the Supreme Court further 

illuminated the atypicality standard in Wilkinson. The 

Wilkinson petitioners were assigned to Ohio’s supermax facility 

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

posed. A unanimous Court held that incarceration in a supermax

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

at 224. 

The Court emphasized three factors in its analysis: 

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

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

whether assignment to administrative segregation had any 
29

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

first factor, the Court found that incarceration in Supermax was

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

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

“deprived of almost any environmental or sensory stimuli and of 

almost all human contact”; and exercise was permitted only 

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

were confined to a supermax facility for an indefinite period, 

their interest in receiving meaningful procedural review was 

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

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

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

eligible inmate for parole consideration.” Id. The Court 

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

might not be sufficient to create a liberty interest, taken 

together they impose an atypical and significant hardship within 

the correctional context.” Id. 

Notably, the Wilkinson Court did not engage in a 

point-by-point comparison of the conditions that inmates 

experienced in a supermax facility with the ordinary incidents 

of prison life. Nor did it determine whether the applicable 

baseline was the general population or any another segregation 

unit. Instead, the Court concluded that incarceration in the 

Supermax environment was so atypical and significant that it 
30

would give rise to a liberty interest “under any plausible 

baseline.” Id. at 223. 

ii.

In the case at hand, the district court held Appellant 

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

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

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

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

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

any case, Appellant was “subject to substantially more favorable 

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

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

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

reasoned:

Even though Beverati predates 

Wilkinson, at the very least it suggests 

that the bar for proving an atypical and 

significant hardship is quite high in the 

Fourth Circuit. Additionally, even since 

Wilkinson the Fourth Circuit has cited 

Beverati in rejecting the notion that 

inmates enjoy a protected liberty interest 

in avoiding confinement in administrative 

segregation, United States v. Daniels, 222 

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

(unpublished) (per curiam) (“Extended stays 

on administrative segregation . . . do not 

ordinarily implicate a protected liberty 

interest.” (citing Beverati, 120 F.3d at 

502)), and courts in this district have 

relied on Beverati in procedural due process 

cases involving administrative segregation.
31

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

The district court was also persuaded by its belief 

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

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

confinement into his own hands to a significant degree.” 

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

distinguished the present circumstances from those in Wilkinson. 

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

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

transfer to the SMU had no effect on his parole eligibility 

because Appellant was already disqualified from this privilege 

as a result of his sentence to life imprisonment without the 

possibility of parole. The district court was incorrect on two

fronts.

The district court misapplied Beverati and Wilkinson. 

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

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

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

neither higher nor lower than that of the Supreme Court. 

Rather, Beverati simply highlights a failure of proof. The 

Beverati inmates failed to meet their burden because the 

evidence showed that administrative segregation was not

significantly worse than confinement in the general population. 
32

The district court’s conclusion that Appellant had no 

liberty interest in avoiding the onerous conditions of his 

confinement was also erroneous. Appellant offered evidence 

demonstrating that conditions in the SMU are significantly worse 

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

and indefiniteness of his confinement implicate the concerns the 

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

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

restrictive conditions and their duration as key factors” in the 

liberty interest analysis). 

First, Appellant demonstrated that his confinement 

conditions were severe. He provided uncontested evidence 

describing the severely restrictive and socially isolating

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

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

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

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

socialize with other inmates; and the denial of educational, 

vocational, and therapy programs.

In many respects, the circumstances of Appellant’s 

incarceration in the SMU mirror the experience of the Wilkinson 

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

in some respects: unlike the Wilkinson inmates, Appellant is 

subject to a highly intrusive strip search every time he leaves 
33

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

were socially isolated to a similar degree.

Second, similar to the Wilkinson inmates’ confinement 

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

extraordinary in its duration and indefiniteness. See

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

indefinite solitary confinement was atypical and significant). 

The district court relied on an unpublished opinion that stated,

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

ordinarily implicate a protected liberty interest.” United 

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

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

an exceptional 20-year stint in highly restrictive solitary 

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

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

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

because Appellant could secure release by renouncing his 

affiliation with the Five Percenters. As we explained above, 

 15 In fact, it is not clear that Daniels had been 

administratively segregated at all -- his interlocutory appeal 

pending sentencing was dismissed for lack of jurisdiction. See

Daniels, 222 F. App’x at 342 (“The order Daniels seeks to appeal 

is neither a final order nor an appealable interlocutory or 

collateral order. Accordingly, we dismiss the appeal for lack 

of jurisdiction.”).
34

renunciation does not guarantee release to the general 

population.

Appellant was already ineligible for parole by virtue 

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

therefore his confinement does not implicate the third concern 

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

undermine the “material and substantial similarities” that this

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

liberty interest pursuant to Wilkinson where inmate was 

administratively segregated indefinitely in highly restrictive 

solitary confinement conditions for nearly 39 years, even though 

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

Therefore, Appellant has demonstrated a liberty 

interest in avoiding solitary confinement in security detention.

2.

The Process Due

Because the district court determined Appellant had no 

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

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

ongoing confinement in the SMU satisfied procedural due process 

standards. Because we hold otherwise, we now address whether 

the Department’s process meets minimum due process standards. 

We conclude that there remains a triable dispute as to whether 

the Department afforded Appellant a meaningful opportunity to 
35

understand and contest its reasons for holding him in solitary 

confinement for the past 20 years.

a.

Particularly in the prison context, “the requirements 

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

protections as the particular situation demands.” Wilkinson, 

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

marks omitted). To determine whether procedural protections are 

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

Mathews v. Eldridge’s three factor test:

First, the private interest that will be 

affected by the official action; second, the 

risk of an erroneous deprivation of such 

interest through the procedures used, and 

the probable value, if any, of additional or 

substitute procedural safeguards; and 

finally, the Government’s interest, 

including the function involved and the 

fiscal and administrative burdens that the 

additional or substitute procedural 

requirement would entail.

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

(applying these factors).

In Wilkinson, the Supreme Court examined the procedure 

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

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

and comprehensive three-tier process that afforded inmates

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

provided them an opportunity to contest the decision on at least 
36

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

administrative segregation was reviewed pursuant to this threetiered process at least once every year. See id. at 217. 

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

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

29.

Regarding the first factor, the Wilkinson Court noted 

that the inmates’ private liberty interests must be 

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

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

lawful confinement have their liberty curtailed by definition

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

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

The second factor -- the risk of erroneous deprivation

-- favored the prison in Wilkinson because its review process 

was comprehensive and multi-layered: 

The . . . [p]olicy provides that an inmate 

must receive notice of the factual basis 

leading to consideration for [Supermax] 

placement and a fair opportunity for 

rebuttal. Our procedural due process cases 

have consistently observed that these are 

among the most important procedural 

mechanisms for purposes of avoiding 

erroneous deprivations. Requiring officials 

to provide a brief summary of the factual 

basis for the classification review and 

allowing the inmate a rebuttal opportunity 

safeguards against the inmate’s being 

mistaken for another or singled out for 

insufficient reason. In addition to having 
37

the opportunity to be heard at the Committee 

stage, Ohio also invites the inmate to 

submit objections prior to the final level 

of review. This second opportunity further 

reduces the possibility of an erroneous 

deprivation.

. . . .

If the recommendation is [Supermax] 

placement, Ohio requires that the 

decisionmaker provide a short statement of 

reasons. This requirement guards against 

arbitrary decisionmaking while also 

providing the inmate a basis for objection 

before the next decisionmaker or in a 

subsequent classification review. The 

statement also serves as a guide for future 

behavior.

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

As to the third factor, concerning the state’s 

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

a traditional adversarial hearing -- particularly the right to 

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

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

encouraged courts to consult the “informal, nonadversary 

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

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

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

Supreme Court held that a nonadversarial process may be 

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

against [the inmate] and an opportunity to present his views to 
38

the prison official charged with deciding whether to transfer 

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

b.

Applying the Mathews factors, we conclude Appellant 

has demonstrated a triable dispute on his procedural due process 

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

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

review process is inadequate and fails to honor the basic values 

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

that Appellant has ever received meaningful review, stands in 

contrast to Wilkinson and falls short of satisfying Hewitt. 

i.

Because Appellant has already been held in solitary 

confinement for 20 years, he has a significant private interest 

in leaving the restrictive conditions in the SMU and serving 

some part of his remaining life sentence outside of solitary 

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

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

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

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

body is subjected to extraordinary intrusion on a regular basis. 

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

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

recognized as an integral part of the individual’s 
39

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

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

pretext for indefinite confinement of an inmate. Prison 

officials must engage in some sort of periodic review of the 

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

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

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

placing a prisoner in segregation to support continued 

confinement, which rendered “his solitary 

confinement . . . effectively indefinite” (internal quotation 

marks omitted)).

ii.

The risk of erroneous deprivation is also exceedingly 

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

Department has only a single-layered confinement review. 

According to Department regulations, the ICC makes the sole 

decision on which inmates are candidates for release. The 

warden does not participate in the decision to release an inmate 

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

to continue detention. This stands in contrast to the multilayered procedural mechanism described by the Wilkinson Court. 

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

Second, the Department regulations do not require the 

ICC to furnish a factual basis for its decisions. Instead, it 
40

need only “provide the inmate with a copy of its 

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

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

perfunctory explanation supporting its decision to continue to 

hold Appellant in solitary confinement. The ICC has merely 

rubber-stamped Appellant’s incarceration in the SMU 

(figuratively and sometimes literally), listing in “rote 

repetition” the same justification every 30 days. Wilkerson, 

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

encourages “arbitrary decisionmaking” and risks the possibility 

that the ICC may single out Appellant “for an insufficient 

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

classification of Appellant is especially wanting for

explanation in light of his nearly perfect disciplinary record

while in security detention. 

Third, the Department regulations do not grant 

Appellant the right to contest the factual bases for his 

detention before the ICC makes its decision -- either with 

respect to his assigned behavior level or his candidacy for 

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

present for the advancement/release review if security staffing 

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

is not required to provide a factual basis for its decision

further increases the “possibility of an erroneous deprivation” 
41

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

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

226.

Appellee nonetheless argues that its review process 

“meets the flexible due process standard” approved in Wilkinson

because, compared to inmates confined in Ohio’s Supermax 

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

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

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

demonstrating the inadequacy of the Department’s confinement 

review, this argument falls flat.

iii.

The third Mathews factor -- state interest -- accounts 

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

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

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

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

grounds for his ongoing confinement and to present his rebuttal 

to those grounds.

We do not decide whether prison review mechanisms must

be as extensive as in Wilkinson in order to pass constitutional 

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

conclude that the record establishes a triable question of 
42

whether the Department’s review process was adequate to protect 

Appellant’s right to procedural due process.

IV.

The district court’s order of summary judgment is

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

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

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

failed to show that his religious beliefs, rather than his 

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

continued solitary confinement. We reverse the district court’s 

order on Appellant’s procedural due process claim because 

Appellant has demonstrated a liberty interest in avoiding 

solitary confinement and Appellee has not proven as a matter of 

law that it provided Appellant meaningful review. We remand

this case for further proceedings consistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART, 

AND REMANDED FOR FURTHER PROCEEDINGS