Lumumba Incumaa v. Bryan Stirling , 791 F.3d 517 ( 2015 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-6411
LUMUMBA K. INCUMAA, a/k/a Theodore Harrison, Jr.,
Plaintiff - Appellant,
v.
BRYAN P. STIRLING, Acting Director of the South Carolina
Department of Corrections,
Defendant - Appellee.
Appeal from the United States District Court for the District of
South Carolina, at Beaufort. David C. Norton, District Judge.
(9:12-cv-03493-DCN)
Argued: March 24, 2015 Decided: July 1, 2015
Before MOTZ, KEENAN, and THACKER, Circuit Judges.
Affirmed in part, reversed in part, and remanded by published
opinion. Judge Thacker wrote the opinion, in which Judge Motz
and Judge Keenan joined.
ARGUED: Emily K. Merki, GEORGETOWN UNIVERSITY LAW CENTER,
Washington, D.C., for Appellant. Andrew Lindemann, DAVIDSON &
LINDEMANN, P.A., Columbia, South Carolina, for Appellee. ON
BRIEF: Steven H. Goldblatt, Center Director, Ruthanne M.
Deutsch, Supervising Attorney, Lola A. Kingo, Supervising
Attorney, Ryan H. Sellinger, Student Counsel, Appellate
Litigation Program, GEORGETOWN UNIVERSITY LAW CENTER,
Washington, D.C., for Appellant.
THACKER, Circuit Judge:
Lumumba Kenyatta Incumaa (“Appellant”) is a member of
the Nation of Gods and Earths (“NOGE”), a group whose adherents
are also known as “Five Percenters.” In 1988, Appellant began
serving a sentence of life imprisonment without the possibility
of parole in a prison operated by the South Carolina Department
of Corrections (the “Department” or “Appellee”). 1 Following his
participation in a 1995 prison riot with other Five Percenters,
he was placed in solitary confinement security detention. He
has remained in solitary confinement for 20 years, despite not
having committed a single disciplinary infraction during that
time.
With this suit, Appellant challenges his confinement
on two grounds. Appellant’s first cause of action arises under
the Religious Land Use and Institutionalized Persons Act
(“RLUIPA”), 42 U.S.C. § 2000cc-1, which prohibits a state from
imposing a substantial burden on an inmate’s religious exercise
unless it proves that the restriction furthers compelling
interests by the least restrictive means. In this regard,
Appellant argues that Department policy required him to renounce
1 Appellant originally sued Department Director William
Robert Byars Jr. in his official capacity. The current
Department Director, Bryan Stirling, replaced Byars as the
defendant. Because Stirling was sued in his official capacity,
we will refer to him and Appellee synonymously.
2
his affiliation with the NOGE, which he alleges is a religion,
before the Department will release him from solitary
confinement. On the second ground, Appellant claims that
Appellee violated his right to procedural due process.
The district court granted Appellee’s motion for
summary judgment. We affirm the portion of the district court
order discarding Appellant’s RLUIPA claim, which, we agree, was
not sufficient to go before a jury. However, we reverse the
grant of summary judgment as it relates to Appellant’s due
process claim. Appellant’s 20-year period of solitary
confinement, we hold, amounts to atypical and significant
hardship in relation to the general population and implicates a
liberty interest in avoiding security detention. Furthermore,
there is a triable dispute as to whether the Department’s
process for determining which inmates are fit for release from
security detention meets the minimum requirements of procedural
due process.
I.
A.
The Five Percenters and Appellant’s Violent History
The NOGE is an “offshoot” of the Nation of Islam and
other religious groups “in the Islamic sphere” that “preach[] a
3
message of black empowerment.” J.A. 91, 92. 2 The Five
Percenters also have a history of violence in South Carolina
prisons. 3 As a result, the parties maintain differing views of
the Five Percenters. Appellant maintains the NOGE is a
religious group. Although Appellee does not contest Appellant’s
claim that the NOGE meets the legal definition of a religion,
the Department’s regulations treat the Five Percenters like a
violent gang. Of note, at times, the Five Percenters have
themselves denied that their organization is a religion. See
id. at 131 (stating, on the cover of “The Five Percenter”
newsletter, “WE ARE NOT A RELIGION” (emphasis in original)).
In April 1995, a group of Five Percenters -- including
Appellant -- organized a prison riot. The assailants took three
Department employees hostage and held them for 11 hours during
an intense standoff with police. 4 Four law enforcement officers
2Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.
3In In re Long Term Administrative Segregation of Inmates
Designated as Five Percenters, we observed that a federal
intelligence summary concluded the Five Percenters were “a
radical Islamic sect/criminal group that is often boldly racist
in its views, prolific in its criminal activities, and operates
behind a facade of cultural and religious rhetoric.” 174 F.3d
464, 467 (4th Cir. 1999) (internal quotation marks omitted).
4In Incumaa v. Ozmint, we noted that Appellant pleaded
guilty to “three counts of hostage-taking and two counts of
assault and battery with intent to kill in relation to his
involvement in the prison riot”; his conviction was vacated on
(Continued)
4
were hospitalized. Following this violent uprising, on June 16,
1995, Appellee designated the Five Percenters as a Security
Threat Group (“STG”). 5
B.
Prison Regulation of STGs and their Members
1.
Assignment of STG Members to Special Management Unit
When the Department’s Special Investigations Unit
suspects that an inmate is a member of an STG, the unit conducts
a “rigorous investigation” to confirm the inmate’s association.
J.A. 126. If the investigators validate the inmate’s STG
membership, the Department’s Institutional Classification
Committee (“ICC”) either recommends labeling the inmate as
Validated-GP, which allows him to reside in the general
population, or designates him as Validated-SD, which entails
placement in security detention. According to Department
Investigator Elbert Pearson,
If an individual has been validated as
an STG member, but has not committed or been
implicated in any disciplinary infractions
ineffective-assistance-of-counsel grounds. 507 F.3d 281, 283
n.1 (4th Cir. 2007).
5
The Five Percenters were implicated in at least 484
incidents “of violence and other disruptive conduct” within the
Department prison network from 2003 to 2013. J.A. 220, 222.
5
or STG activities, that individual would
typically, although not always, receive a
classification of Validated-GP . . . .
If an individual has been validated as
an STG member, and has committed
disciplinary infractions . . . that
individual would typically receive a
classification of Validated-SD . . . .
Id. at 126-27. Security detention, in contrast to disciplinary
detention, is not a punishment for disciplinary infractions but
is used to protect inmates and staff and to maintain prison
order.
If the ICC classifies an STG inmate as Validated-SD,
it then determines where to place the inmate and what
restrictions to impose upon him. The Department maintains two
security detention units. A Validated-SD inmate can be assigned
either to the Special Management Unit (“SMU”) or the more
restrictive Maximum Security Unit, which houses inmates who have
engaged in violent behavior or have committed serious rules
infractions. The ICC also determines the inmate’s “behavior
level,” which dictates the inmate’s restrictions and privileges
while in his respective unit. J.A. 137. “Inmates who have been
assigned to [s]ecurity [d]etention without serving
[d]isciplinary [d]etention” are designated as Level II, and
“inmates charged with . . . assault on a staff member and/or
6
inmate” are “automatically . . . assigned to Level I.” 6 Id.
Level I inmates are held in the “strictest degree of custody and
control” available in their unit. Id. at 149.
Due to his role in the 1995 riot, Appellant was
validated as a Five Percenter, designated Validated-SD, and
placed in the Maximum Security Unit. His assignment to security
detention was not a punishment for participating in the riot but
was generally intended “to maintain and control the inmate and
to provide safety and security for the staff and other inmates.”
J.A. 284. Appellant was transferred to the SMU in 2005, and he
has remained in the SMU as a Level II inmate since that time.
He is currently one of only two Five Percenters housed in the
SMU -- other validated Five Percenters are permitted to reside
in the general population and openly maintain their affiliation
with the group. During the decades Appellant has spent in
security detention, he has not committed a single disciplinary
infraction.
6Although the Department regulations only mention two
behavior levels, the ICC’s classification notices imply that a
Level III also exists. See Incumaa v. Ozmint, 507 F.3d at 283-
84 (discussing Level III classification).
7
2.
Conditions in SMU versus General Population
Appellant claims the SMU is substantially more
restrictive than the general population. The Department does
not contradict this account. As an SMU inmate, Appellant is
• confined to his cell “24 hours a day on non-
recreation and non-shower days”;
• permitted to leave his cell for recreation
only one hour approximately ten times per
month;
• allowed only a ten-minute shower three times
per week;
• “stripped [sic] searched, made to lift and
shake his genitalia, made to bend over,
spread his buttocks in the direction of the
officer so that he may look at [Appellant’s]
anus, then made to squat and cough, and
afterwards hand cuffed behind his back every
time he leaves the cell, even to the shower
where he is locked in a single occupancy
shower stall”;
• served smaller portions of food than inmates
in the general population receive;
• required to eat all meals in his cell;
• limited to property that can fit into a box
that is 15 by 12 by 10 inches;
• “denied all canteen privileges”;
• denied “education and vocational
opportunities”; and
• “denied the opportunity to receive mental
health treatment for his diagnosed mental
health condition.”
8
J.A. 23-24.
3.
Review of SMU Detention
Department regulations require the ICC to review each
SMU inmate’s candidacy for release every 30 days. According
Pearson, there are three bases on which the ICC may recommend
reclassification and release from the SMU: (1) the inmate
renounces affiliation with the STG; 7 (2) improvement in behavior
level; or (3) the Department Director removes the inmate’s group
from the STG list.
To renounce his affiliation, the inmate “fills out a
detailed questionnaire about why he or she wants to renounce
membership” in the STG. J.A. 127. The ICC then reviews the
questionnaire and determines whether the inmate’s attempt to
renounce STG affiliation is sincere. Consequently, the ICC may
choose to reject an inmate’s attempt to renounce his
affiliation. See Reply to Pl.’s Resp. to Defs.’ Mot. for Summ.
7 Pearson diverges from the letter of the Department
regulations don this point to some extent. The Department
regulations do not mention the renunciation policy; they only
state that “[i]nmates who have clear disciplinary records and
who comply with unit procedures, inmate grooming and sanitation
standards will be considered for . . . release from SMU.” J.A.
138. However, because we must interpret the evidence in the
light most favorable to Appellant -- and because Appellee
apparently concedes this point -- we will assume that the
renunciation policy is a feature of the Department regulations.
9
Jud. at 2, Incumaa v. Byars, No. 9:12-cv-03493 (D.S.C. Dec. 12,
2012; filed Aug. 31, 2013), ECF No. 34 (“It is unclear whether
[the Department] would even allow the Plaintiff to renounce and
be reassigned to the general population given his involvement as
a ringleader in the 1995 riot . . . .”).
With regard to reclassifications based on “behavior
level,” J.A. 138, Department regulations state:
Inmates who have clear disciplinary
records and who comply with unit
procedures . . . will be considered for
advancement from Level I to Level II or
release from SMU. . . . The decision
to release an inmate from
SMU . . . will be based upon the
inmate’s overall disciplinary record
and compliance with all Agency policies
and procedures while in SMU.
Id. at 138, 139. The ICC has authority “to reduce or advance
the inmate’s Level as it deems appropriate.” Id. at 138.
Pursuant to Department regulations, after each 30-day review
period, the ICC is required to deliver a notice of its
classification decision to the inmate within 48 hours. However,
the regulations do not require the ICC to provide any factual
basis for its decision to maintain an inmate at the same
behavior level or to recommend against release from the SMU.
The record contains copies of the ICC’s classification
notices to Appellant, and these notices span nine months --
February to November 2012 -- of his solitary confinement. Each
10
notice is nearly identical to the next and simply states that
Appellant continues to be held in the SMU and “remain[s] Level
II.” J.A. 95-103. All provide the same perfunctory, five-
letter justification for this recommendation: “STG-SD.” Id.
The ICC’s required 30-day reviews are also documented on
Department records labeled Form 18-68, also known as “Staff
Memoranda.” Id. at 138. The record contains the Staff
Memoranda documenting review of Appellant’s confinement in the
SMU every 30 days from May 2008 to May 2013. 8 In total, there
are 64 entries in the record. All but one of them is
accompanied by the same comment: “Warden’s review, 30 day ICC &
monthly visit.” Id. at 156-58. The single varying entry -- on
April 25, 2012 -- states that Appellant “remain[ed] in SMU” and
would “not renounce his affiliation” with the Five Percenters.
Id. at 158. None of the entries provides a detailed explanation
of the basis for Appellant’s continued confinement.
According to Department regulations, the ICC’s
periodic release review is single-layered. 9 The warden does not
8
Although prison officials claim that Appellant’s custody
has been reviewed every 30 days since his transfer to the SMU,
the Department did not produce the Staff Memoranda from, 2005 to
2007.
9
Although 30-day status reviews are entered as “Warden’s
Review” on the Staff Memoranda, it appears from the record that
the ICC conducts these evaluations on the warden’s behalf.
Where they discuss review for release from the SMU, the
(Continued)
11
review the ICC’s decision regarding confinement unless the
inmate “appeal[s] the decision of the ICC through the inmate
grievance system” or the ICC recommends release from security
detention, in which case “[t]he ICC must ensure the concurrence
of the Warden/Designee for the inmate’s release.” 10 J.A. 137,
139.
Appellant filed a grievance on April 21, 2009,
alleging that the ICC “refus[ed] to consider [him] for a lower
security detention level until and unless [he] renounce[d] [his]
faith” -- which, he said, “impose[d] a substantial burden on
[his] ability to exercise [his] religion.” J.A. 12. In the
section marked “action requested,” Appellant requested reform of
Department regulations emphasize the ICC’s role, not the
warden’s: “The decision to release an inmate from SMU can be
recommended by the ICC,” and “[t]he ICC . . . ha[s] the
authority to reduce or advance the inmate’s Level as it deems
appropriate based on the inmate’s behavior while housed in SMU.”
J.A. 138, 139. Additionally, the regulations state that “the
Warden must review the status of all inmates in continuous
confinement for more than 30 days,” but direct staff to document
reviews on a form entitled “SCDC Form 19-30, SMU Institutional
Classification Committee Review.” Id. at 138 (internal
quotation marks omitted).
10
While the Department regulations, read literally, only
permit inmates to appeal the ICC’s decision to place them in
security detention, Appellant was allowed to file a grievance
regarding the ICC’s decision that he remain in the SMU.
Therefore, for the purposes of this case we will interpret the
regulations as authorizing inmates already in the SMU to oppose
a classification review decision through the grievance system.
12
the STG policy “so that classifications are made on an
individual, not religious basis.” Id. Appellant also requested
“regular and periodic evaluations by the [ICC] of [his] STG
classification.” Id. The warden responded that Appellant’s
requests could not be accommodated because “[t]he issue
[Appellant] addressed is an issue against policy, which cannot
be changed” by the administrators of the prison because policy
changes “are made at the institutional level.” Id. at 13.
Accordingly, the warden denied Appellant’s grievance. Appellant
appealed the warden’s decision to the Department’s director, who
concurred with the warden because Appellant “ha[d] been informed
on what procedures [he] must follow to be considered for release
from the [SMU], to include renouncing [his] affiliation with
[the Five Percenters].” Id. at 14.
C.
Procedural History
On December 12, 2012, Appellant filed a pro se
complaint pursuant to 42 U.S.C. § 1983. Appellant claimed that
the Department’s renunciation policy violated his rights under
RLUIPA. Appellant also claimed that, throughout his detention
in the SMU, the Department violated his procedural due process
rights by failing to conduct meaningful review of whether he was
fit for release to the general population. Appellee moved for
13
summary judgment on both of these claims. The district court
granted the motion. Though the court assumed that the NOGE
constituted a religion -- and apparently determined that
Appellant’s confinement imposed a substantial burden on his
beliefs -- it nonetheless concluded that the Department’s policy
was “the least restrictive means of furthering the government’s
compelling interests” and therefore did not violate RLUIPA.
Incumaa v. Stirling, No. 9:12-cv-03493, 2014 WL 958679, at *7
(D.S.C. Mar. 11, 2014). The court also held that Appellant’s
procedural rights were not violated because he failed to prove
that his circumstances of imprisonment “[rose] to the level of
an atypical and substantial hardship” -- a prerequisite to
establishing a due process right to review for release from
security detention. Id. at *10. Appellant filed a timely
appeal.
Appellant argues that a reasonable juror may find that
Department policy places a substantial burden on his exercise of
religion because it conditions release from the SMU on
renouncing his NOGE faith. He also argues that the district
court erred in concluding that the conditions he has experienced
for the last 20 years in solitary confinement do not constitute
atypical and significant hardship in relation to the ordinary
incidents of prison life.
14
II.
“We review the district court’s grant of summary
judgment de novo. . . . As to those elements on which it bears
the burden of proof, a government is only entitled to summary
judgment if the proffered evidence is such that a rational
factfinder could only find for the government” and it is
entitled to judgment as a matter of law. Smith v. Ozmint, 578
F.3d 246, 250 (4th Cir. 2009). To make this determination, we
review the entire record, evaluating the evidence in the light
most favorable to Appellant. See Beverati v. Smith, 120 F.3d
500, 503 (4th Cir. 1997).
III.
A.
RLUIPA Claim
In relevant part, RLUIPA states:
No government shall impose a substantial
burden on the religious exercise of a person
residing in or confined to an
institution . . . , even if the burden
results from a rule of general
applicability, unless the government
demonstrates that the imposition of the
burden on that person--
(1) is in furtherance of a compelling
governmental interest; and
(2) is the least restrictive means of
furthering that compelling governmental
interest.
15
42 U.S.C. § 2000cc-1(a). 11
By enacting RLUIPA, Congress afforded prisoners free-
exercise rights similar to those enjoyed by the free population.
See Cutter v. Wilkinson, 544 U.S. 709, 715-17 (2005). RLUIPA
prescribes a shifting burden of proof for inmate religious
exercise claims. The inmate bears the initial burden to
demonstrate that the prison’s policy exacts a substantial burden
on religious exercise. If the inmate clears this hurdle, the
burden shifts to the government to prove its policy furthers a
compelling governmental interest by the least restrictive means.
See 42 U.S.C. § 2000cc-2(b).
A prison regulation may impose a “substantial burden”
by forcing “a person to ‘choose between following the precepts
of her religion and forfeiting [governmental] benefits, on the
one hand, and abandoning one of the precepts of her
religion . . . on the other hand.’” Lovelace v. Lee, 472 F.3d
174, 187 (4th Cir. 2006) (alterations in original) (quoting
Sherbert v. Verner, 374 U.S. 398, 404 (1963)). In other words,
the regulation places the person between a rock and a hard
place.
11
As a “governmental entity created under the authority of
a State,” the Department “fit[s] within [the] definition” of
“government.” Smith v. Ozmint, 578 F.3d 246, 250 (4th Cir.
2009).
16
For example, in Couch v. Jabe, an inmate claimed that
his religious beliefs required him to grow a one-inch beard.
679 F.3d 197, 199 (4th Cir. 2012). Prison policy forbade facial
hair and the prison “limit[ed] or t[ook] away governmental
benefits” to enforce the beard ban. Id. at 200. If the inmate
cut his beard, the prison reinstated the benefits. We held that
this practice “fit squarely within the accepted definition of
substantial burden” because it forced the inmate to choose
between following the edicts of his religion and losing
privileges. Id. (internal quotation marks omitted).
The Supreme Court recently held the same. In Holt v.
Hobbs, a prisoner faced “serious disciplinary action” if he grew
a beard as dictated by his religion. 135 S.Ct. 853, 862 (2015).
The Court concluded that “put[ting] petitioner to [the] choice”
between punishment and violating his beliefs “substantially
burden[ed] his religious exercise.” Id.Here, Appellant argues that the Department policy
similarly imposes a substantial burden on his religious exercise
because it “forces [him] to choose between continued adherence
to his religion in solitary confinement, on one hand, and the
far more favorable living conditions of the general population,
17
on the other.” Appellant’s Br. 49. 12 For purposes of this case,
we assume without deciding that the Five Percenters are a
religious group entitled to protection. This argument fails
because the Department Policy forces no such choice upon him.
Indeed, according to Pearson, renunciation is only one of three
avenues for securing release from the SMU, and Department Policy
does not guarantee release even if a Validated-SD inmate does
renounce. See J.A. 127. Moreover, Appellant himself
acknowledges that other Five Percenters are permitted to reside
in the general population and openly maintain their affiliation.
Appellant’s argument that the Department’s singular goal is to
make him renounce his religion is further undermined by the fact
that Department officials permit Appellant to possess NOGE
materials while in the SMU but ban these items in the general
population.
Appellant notes that he has not committed any
disciplinary infractions since the 1995 riot and points us to
one entry in the Staff Memoranda where an SMU staff member
mentioned that Appellant refused to renounce his NOGE
affiliation. He argues that this evidence demonstrates that
12
Appellant mentions in passing that SMU regulations also
prevent him from celebrating “Honor Days,” the NOGE’s highest
holidays, but the only substantial burden he argues in his brief
relates to the Department renunciation policy. Appellant’s Br.
48.
18
renunciation must be a prerequisite to returning to the general
population. Although “administrative segregation may not be
used as a pretext for indefinite confinement,” on this record it
would be unreasonable to conclude that the ICC has no plausible
reason other than Appellant’s refusal to renounce his NOGE
affiliation for continuing to view Appellant as a threat to
prison staff and other inmates. Hewitt v. Helms, 459 U.S. 460,
477 n.9 (1983); see also Cutter, 544 U.S. at 717 (noting that
Congress “anticipated . . . that courts would apply [RLUIPA]
with due deference to the experience and expertise of prison and
jail administrators” (internal quotation marks omitted)).
In sum, no reasonable factfinder could conclude that
Appellant’s renunciation of his faith is a prerequisite to
returning to the general population. Appellant has failed to
demonstrate that the Department’s policy imposes a substantial
burden on his religion. Therefore, we conclude that Appellee
must prevail on the RLUIPA claim as a matter of law.
B.
Due Process Claim
Appellant also presses a procedural due process claim.
Our analysis of this claim entails a two-step process. First,
we determine whether Appellant had a protectable liberty
interest in avoiding security detention. See Burnette v. Fahey,
687 F.3d 171, 180 (4th Cir. 2012). Second, we then evaluate
19
whether the Department failed to afford Appellant minimally
adequate process to protect that liberty interest. See id. at
181. For the reasons that follow, we conclude Appellee cannot
prevail on either of these sub-issues as a matter of law.
Therefore, we reverse the district court’s order of summary
judgment as to Appellant’s procedural due process claim.
1.
Liberty Interest
Although “[l]awful incarceration brings about the
necessary withdrawal or limitation of many privileges and
rights,” a prisoner’s right to liberty does not entirely
disappear. Price v. Johnson, 334 U.S. 266, 285 (1948); see also
In re Long Term Admin. Segregation of Inmates Designated as Five
Percenters, 174 F.3d 464, 468 (4th Cir. 1999). “[F]ederal
courts must take cognizance of the valid constitutional claims
of prison inmates.” Turner v. Safley, 482 U.S. 78, 84 (1987).
In Sandin v. Conner, the Supreme Court declared that prisoners
have a liberty interest in avoiding confinement conditions that
impose “atypical and significant hardship on the inmate in
relation to the ordinary incidents of prison life.” 515 U.S.
472, 484 (1995). The Court reaffirmed the Sandin standard in
Wilkinson v. Austin, 545 U.S. 209 (2005).
Recently, in Prieto v. Clarke, we held that Sandin,
Wilkinson, and our precedent “do[] not hold that harsh or
20
atypical prison conditions in and of themselves provide the
basis of a liberty interest giving rise to Due Process
protection.” Prieto v. Clarke, 780 F.3d 245, 249 (4th Cir.
2015). Rather, inmates must first establish that an interest in
avoiding onerous or restrictive confinement conditions “arise[s]
from state policies or regulations” (e.g., a regulation
mandating periodic review). Id. (internal quotation marks
omitted). Because there is uncontroverted evidence that the
Department policy here mandates review of Appellant’s security
detention every 30 days, we have no trouble concluding that
Appellant has met the first prong of his burden under Sandin and
its progeny. The predominant question in this case, rather, is
whether Appellant established that the conditions he experienced
during his two decades in solitary confinement present atypical
and significant hardship in relation to the ordinary incidents
of prison life.
Whether confinement conditions are atypical and
substantially harsh “in relation to the ordinary incidents of
prison life” is a “necessarily . . . fact specific” comparative
exercise. Beverati v. Smith, 120 F.3d 500, 502, 503 (4th Cir.
1997); accord Ramirez v. Galaza, 334 F.3d 850, 861 (9th Cir.
2003) (“There is no single standard for determining whether a
prison hardship is atypical and significant, and the condition
or combination of conditions or factors . . . requires case by
21
case, fact by fact consideration.” (alteration in original)
(internal quotation marks omitted)). In Prieto, we recognized
that the Sandin standard contains two parts. Cf. Prieto, 780
F.3d at 253-54. First, we determine what the normative
“baseline” is: what constitutes the “ordinary incidents of
prison life” for this particular inmate? Id. at 253 (“What the
inmates in Beverati could expect to experience and what Prieto
can expect to experience differ significantly. . . . For
conditions dictated by a prisoner’s conviction and sentence are
the conditions constituting the ‘ordinary incidents of prison
life’ for that prisoner.”). Then, with the baseline
established, we determine whether the prison conditions impose
atypical and substantial hardship in relation to that norm. See
id. at 254 (holding that Prieto’s death row confinement did not
impose atypical and significant hardship in relation to the
ordinary incidents of prison life).
a.
Normative Baseline for Atypicality
Although some of our sister circuits read our decision
in Beverati to imply that the typical conditions in the general
prison population provide the comparative baseline, see, e.g.,
Wilkerson v. Goodwin, 774 F.3d 845, 854 (5th Cir. 2014), Prieto
held that the general prison population is not always the basis
for comparison -- the “baseline for atypicality” may shift
22
depending on the “prisoner’s conviction and sentence.” Prieto,
780 F.3d at 253. Nonetheless, for the reasons explained below,
we conclude that the general population is the baseline for
atypicality for inmates who are sentenced to confinement in the
general prison population and have been transferred to security
detention while serving their sentence.
In Beverati, the general population was the baseline.
There, inmates sentenced to the Maryland Penitentiary’s general
population were administratively segregated in solitary
confinement because they possessed escape paraphernalia. 13 The
inmates complained that Maryland prison officials deprived them
of procedural due process. To determine whether “the conditions
the prisoner[s] maintain[ed] [gave] rise to a liberty interest,”
we compared the inmates’ living conditions to “those incident to
normal prison life.” Beverati, 120 F.3d at 503. Because
“applicable prison regulations indicate[d] that the conditions
in administrative segregation [we]re similar in most respects to
those experienced by inmates in the general population,” we
concluded that the inmates did not possess a liberty interest in
avoiding administrative segregation. Id.13One of the Beverati inmates was originally placed in
disciplinary detention, but he was transferred to administrative
segregation after serving his disciplinary sentence. See 120
F.3d at 501-02.
23
But in Prieto, we held that using the general
population to gauge the ordinary incidents of prison life for a
death row inmate was improper. See 780 F.3d at 252-54. There,
a Virginia inmate on death row claimed a liberty interest in
avoiding the “undeniably severe” conditions of death row
confinement. Id. at 252, 254. The district court interpreted
Beverati to convey that “the Fourth Circuit uses a facility’s
‘general prison population’ as the relevant baseline.” Prieto
v. Clarke, No. 1:12-cv-1199, 2013 WL 6019215, at *1 (E.D. Va.
Nov. 12, 2013) (internal quotation marks omitted), rev’d, 780
F.3d 245 (4th Cir. 2015). The court determined that housing
conditions on death row were atypical and significantly harsh
compared to the general population and, therefore, gave rise to
a liberty interest. We reversed. Because “Virginia law
mandate[d] that all persons convicted of capital crimes
are . . . automatically confined to death row,” Prieto, 780 F.3d
at 254, housing on death row was “normal prison life,” Beverati,
120 F.3d at 503. Therefore, Prieto was unable to assert a
liberty interest in avoiding confinement to death row. See
Prieto, 780 F.3d at 253.
The “conditions dictated by a prisoner’s conviction
and sentence,” we stated, “are the conditions constituting the
‘ordinary incidents of prison life’ for that prisoner.” Prieto,
780 F.3d at 254 (emphasis supplied) (quoting Sandin, 515 U.S. at
24
484); accord Rezaq v. Nalley, 677 F.3d 1001, 1013 (10th Cir.
2012) (“The ordinary incidents of prison life will differ
depending on a particular inmate’s conviction . . . .” (internal
quotation marks omitted)). Although the “nature of a[n
inmate’s] conviction” and the “length of [his] sentence” do not
“give rise to different liberty interests,” “state law mandates
[regarding] the confinement conditions to be imposed on
offenders convicted of a certain crime and receiving a certain
sentence . . . are, by definition, the ordinary incidents of
prison life for such offenders.” Prieto, 780 F.3d at 254
(internal quotation marks omitted). A death row inmate’s
confinement conditions must fall within the “‘expected
perimeters’” of his death row sentence. Id. (emphasis omitted)
(quoting Sandin, 515 U.S. at 485). Likewise, a general
population inmate’s confinement expectations radiate from the
conditions that inmates in the general population normally
experience. See id. at 253-54 (“What the inmates in Beverati
could expect to experience and what Prieto can expect to
experience differ significantly. It should come as no surprise
that the baseline does, too.”).
Although the general prison population is not the
relevant atypicality baseline in all cases, it is the touchstone
in cases where the inmate asserting a liberty interest was
sentenced to confinement in the general population and later
25
transferred to security detention. 14 See Prieto, 780 F.3d at
252. This view comports with Supreme Court opinions as well as
our precedent. See Wilkinson, 545 U.S. at 223 (“Sandin found no
liberty interest protecting against a 30-day assignment to
segregated confinement because it did not present a dramatic
departure from the basic conditions of the [inmate’s sentence].”
(alteration in original) (internal quotation marks omitted));
Prieto, 780 F.3d at 254 (“Prieto, like any other inmate, can
only be deprived of that to which he is entitled.” (emphasis in
original)); Beverati, 120 F.3d at 501, 503; Gaston v. Taylor,
946 F.2d 340, 343 (4th. 1991) (“[P]unishment or confinement
beyond that contemplated by the original sentence imposed can be
imposed only with procedures satisfying due process.”).
Because it is uncontroverted that Appellant was
sentenced to the general population, the general population is
the basis for our comparison here.
14
We previously took this approach in Walsh v. Corcoran,
No. 98-7853, 2000 WL 328019, at *7 (4th Cir. Mar. 29, 2000)
(unpublished) (“[I]n Beverati, our determination that
administrative segregation did not present an atypical or
significant hardship involved using the incidents of prison life
that flowed from the inmates’ original sentences as a baseline
for comparison with conditions in administrative segregation.”).
26
b.
Atypical and Significant Hardship
Having identified the general population as the
atypicality baseline, we turn to whether Appellant has met his
burden of proof. Appellant must demonstrate his solitary
confinement in security detention constitutes atypical and
significant hardship in relation to the general population. See
Sandin, 515 U.S. at 483; Prieto, 780 F.3d at 251 (placing burden
of proof on the inmate).
i.
To understand which confinement conditions are
atypical and significant in comparison to the general
population, we turn to Beverati and Wilkinson.
The Beverati inmates complained that the conditions of
their six-month administrative segregation amounted to atypical
and significant hardship. See Beverati, 120 F.3d at 503-04.
Prison regulations specified that although inmates on
administrative segregation were confined to solitary cells, they
were permitted at least one hour of recreation outside their
cells seven days per week, just as the general population
inmates were. See id. at 504. The inmates in administrative
segregation also had substantially the same access to prison
services and educational programming as the general population.
27
See id. at 503. Nevertheless, the inmates alleged that these
regulations were not being enforced and that, in fact, the
inmates in administrative segregation experienced more onerous
conditions. See id. at 504. We credited the inmates’
assertions but noted, “[t]he applicable prison regulations
indicate[d] that the conditions in administrative segregation
[we]re similar in most respects to those experienced by inmates
in the general population.” Id. at 503. Although the inmates
offered evidence that conditions in administrative segregation
were more burdensome “than those imposed on the general prison
population,” we concluded these conditions “were not so atypical
that exposure to them for six months” implicated a liberty
interest. Id. at 504.
Eight years after Beverati, the Supreme Court further
illuminated the atypicality standard in Wilkinson. The
Wilkinson petitioners were assigned to Ohio’s supermax facility
based on the prison’s evaluation of the security risk they
posed. A unanimous Court held that incarceration in a supermax
facility implicated liberty interests. See Wilkinson, 545 U.S.
at 224.
The Court emphasized three factors in its analysis:
(1) the magnitude of confinement restrictions; (2) whether the
administrative segregation is for an indefinite period; and (3)
whether assignment to administrative segregation had any
28
collateral consequences on the inmate’s sentence. As for the
first factor, the Court found that incarceration in Supermax was
“synonymous with extreme isolation”; “every aspect of an
inmate’s life [was] controlled and monitored”; inmates were
“deprived of almost any environmental or sensory stimuli and of
almost all human contact”; and exercise was permitted only
indoors for one hour per day. Id. 214. Second, because inmates
were confined to a supermax facility for an indefinite period,
their interest in receiving meaningful procedural review was
magnified. See id. at 224 (“Unlike the 30-day placement in
Sandin, placement [in Supermax] is indefinite . . . .”). And
third, assignment to Supermax “disqualifie[d] an otherwise
eligible inmate for parole consideration.” Id. The Court
concluded that, “[w]hile any of these conditions standing alone
might not be sufficient to create a liberty interest, taken
together they impose an atypical and significant hardship within
the correctional context.” Id.Notably, the Wilkinson Court did not engage in a
point-by-point comparison of the conditions that inmates
experienced in a supermax facility with the ordinary incidents
of prison life. Nor did it determine whether the applicable
baseline was the general population or any another segregation
unit. Instead, the Court concluded that incarceration in the
Supermax environment was so atypical and significant that it
29
would give rise to a liberty interest “under any plausible
baseline.” Id. at 223.
ii.
In the case at hand, the district court held Appellant
had no liberty interest, reasoning that “[m]ost of the
conditions alleged [we]re nothing more than the usual aspects of
a solitary confinement facility”; “besides the length of his
confinement . . . [Appellant] ha[d] not alleged living
conditions nearly as bad as those present in Beverati”; and in
any case, Appellant was “subject to substantially more favorable
conditions than the inmates in Wilkinson.” Incumaa v. Stirling,
No. 9:12-cv-03493, 2014 WL 958679, at *9-10 (D.S.C. Mar. 11,
2014) (internal quotation marks omitted). The court further
reasoned:
Even though Beverati predates
Wilkinson, at the very least it suggests
that the bar for proving an atypical and
significant hardship is quite high in the
Fourth Circuit. Additionally, even since
Wilkinson the Fourth Circuit has cited
Beverati in rejecting the notion that
inmates enjoy a protected liberty interest
in avoiding confinement in administrative
segregation, United States v. Daniels, 222
F. App’x 341, 342 n.* (4th Cir. 2007)
(unpublished) (per curiam) (“Extended stays
on administrative segregation . . . do not
ordinarily implicate a protected liberty
interest.” (citing Beverati, 120 F.3d at
502)), and courts in this district have
relied on Beverati in procedural due process
cases involving administrative segregation.
30
Id. at *9 n.4 (citation omitted).
The district court was also persuaded by its belief
that Appellant’s stay in the SMU was not indefinite because the
“[Department’s] renunciation procedure puts the duration of his
confinement into his own hands to a significant degree.”
Incumaa, 2014 WL 958679, at *10. This, the court stated,
distinguished the present circumstances from those in Wilkinson.
See id. The court also relied on the fact that, in contrast
with the Wilkinson inmates’ assignment to Supermax, Appellant’s
transfer to the SMU had no effect on his parole eligibility
because Appellant was already disqualified from this privilege
as a result of his sentence to life imprisonment without the
possibility of parole. The district court was incorrect on two
fronts.
The district court misapplied Beverati and Wilkinson.
Beverati does not signal that “the bar for proving an atypical
and significant hardship is quite high in the Fourth Circuit.”
Incumaa, 2014 WL 958679 at *9 n.4. The bar in our circuit is
neither higher nor lower than that of the Supreme Court.
Rather, Beverati simply highlights a failure of proof. The
Beverati inmates failed to meet their burden because the
evidence showed that administrative segregation was not
significantly worse than confinement in the general population.
31
The district court’s conclusion that Appellant had no
liberty interest in avoiding the onerous conditions of his
confinement was also erroneous. Appellant offered evidence
demonstrating that conditions in the SMU are significantly worse
than in the general population and that the severity, duration,
and indefiniteness of his confinement implicate the concerns the
Supreme Court identified in Wilkinson. See Wilkerson, 774 F.3d
at 854 (collecting cases that “considered the severity of the
restrictive conditions and their duration as key factors” in the
liberty interest analysis).
First, Appellant demonstrated that his confinement
conditions were severe. He provided uncontested evidence
describing the severely restrictive and socially isolating
environment of the SMU in contrast to the general population --
the near-daily cavity and strip searches; the confinement to a
small cell for all sleeping and waking hours, aside from ten
hours of activity outside the cell per month; the inability to
socialize with other inmates; and the denial of educational,
vocational, and therapy programs.
In many respects, the circumstances of Appellant’s
incarceration in the SMU mirror the experience of the Wilkinson
inmates in Ohio’s Supermax facility. It may, in fact, be worse
in some respects: unlike the Wilkinson inmates, Appellant is
subject to a highly intrusive strip search every time he leaves
32
his cell. And, the Beverati inmates did not allege that they
were socially isolated to a similar degree.
Second, similar to the Wilkinson inmates’ confinement
in a supermax facility, Appellant’s confinement to the SMU is
extraordinary in its duration and indefiniteness. See
Wilkerson, 774 F.3d at 855 (concluding that inmate’s 39-year
indefinite solitary confinement was atypical and significant).
The district court relied on an unpublished opinion that stated,
“[e]xtended stays on administrative segregation . . . do not
ordinarily implicate a protected liberty interest.” United
States v. Daniels, 222 F. App’x 341, 342 n.* (4th Cir. 2007).
But Daniels has no precedential weight, and it did not consider
an exceptional 20-year stint in highly restrictive solitary
confinement, as we do here. 15 Furthermore, the district court
wrongly concluded that Appellant’s stay in the SMU, although not
limited to a particular number of days, was not “indefinite”
because Appellant could secure release by renouncing his
affiliation with the Five Percenters. As we explained above,
15In fact, it is not clear that Daniels had been
administratively segregated at all -- his interlocutory appeal
pending sentencing was dismissed for lack of jurisdiction. See
Daniels, 222 F. App’x at 342 (“The order Daniels seeks to appeal
is neither a final order nor an appealable interlocutory or
collateral order. Accordingly, we dismiss the appeal for lack
of jurisdiction.”).
33
renunciation does not guarantee release to the general
population.
Appellant was already ineligible for parole by virtue
of his sentence before he was transferred to the SMU, and
therefore his confinement does not implicate the third concern
identified in Wilkinson. But that fact, in itself, does not
undermine the “material and substantial similarities” that this
case bears to Wilkinson. Wilkerson, 774 F.3d at 855 (finding
liberty interest pursuant to Wilkinson where inmate was
administratively segregated indefinitely in highly restrictive
solitary confinement conditions for nearly 39 years, even though
segregation did not affect the inmate’s parole eligibility).
Therefore, Appellant has demonstrated a liberty
interest in avoiding solitary confinement in security detention.
2.
The Process Due
Because the district court determined Appellant had no
liberty interest in avoiding the SMU as a matter of law, it did
not address whether the Department’s review of Appellant’s
ongoing confinement in the SMU satisfied procedural due process
standards. Because we hold otherwise, we now address whether
the Department’s process meets minimum due process standards.
We conclude that there remains a triable dispute as to whether
the Department afforded Appellant a meaningful opportunity to
34
understand and contest its reasons for holding him in solitary
confinement for the past 20 years.
a.
Particularly in the prison context, “the requirements
of due process are flexible and [call] for such procedural
protections as the particular situation demands.” Wilkinson,
545 U.S. at 224 (alteration in original) (internal quotation
marks omitted). To determine whether procedural protections are
sufficient to protect an inmate’s liberty interests, we look to
Mathews v. Eldridge’s three factor test:
First, the private interest that will be
affected by the official action; second, the
risk of an erroneous deprivation of such
interest through the procedures used, and
the probable value, if any, of additional or
substitute procedural safeguards; and
finally, the Government’s interest,
including the function involved and the
fiscal and administrative burdens that the
additional or substitute procedural
requirement would entail.
424 U.S. 319, 335 (1976); see also Wilkinson, 545 U.S. at 224(applying these factors).
In Wilkinson, the Supreme Court examined the procedure
that Ohio prisons employed to review an inmate’s confinement to
the Supermax unit. Ohio’s procedural mechanism was a complex
and comprehensive three-tier process that afforded inmates
notice of the basis for the prison’s transfer decision and
provided them an opportunity to contest the decision on at least
35
two occasions. See 545 U.S. at 215-17, 227. And the inmate’s
administrative segregation was reviewed pursuant to this three-
tiered process at least once every year. See id. at 217.
Applying the Mathews factors, the Court held that Ohio’s process
was sufficient to protect the inmates’ rights. See id. at 228-
29.
Regarding the first factor, the Wilkinson Court noted
that the inmates’ private liberty interests must be
“evaluated . . . within the context of the prison system and its
attendant curtailment of liberties” because “[p]risoners held in
lawful confinement have their liberty curtailed by definition
[and] the procedural protections to which they are entitled are
more limited.” Wilkinson, 545 U.S. at 225.
The second factor -- the risk of erroneous deprivation
-- favored the prison in Wilkinson because its review process
was comprehensive and multi-layered:
The . . . [p]olicy provides that an inmate
must receive notice of the factual basis
leading to consideration for [Supermax]
placement and a fair opportunity for
rebuttal. Our procedural due process cases
have consistently observed that these are
among the most important procedural
mechanisms for purposes of avoiding
erroneous deprivations. Requiring officials
to provide a brief summary of the factual
basis for the classification review and
allowing the inmate a rebuttal opportunity
safeguards against the inmate’s being
mistaken for another or singled out for
insufficient reason. In addition to having
36
the opportunity to be heard at the Committee
stage, Ohio also invites the inmate to
submit objections prior to the final level
of review. This second opportunity further
reduces the possibility of an erroneous
deprivation.
. . . .
If the recommendation is [Supermax]
placement, Ohio requires that the
decisionmaker provide a short statement of
reasons. This requirement guards against
arbitrary decisionmaking while also
providing the inmate a basis for objection
before the next decisionmaker or in a
subsequent classification review. The
statement also serves as a guide for future
behavior.
Wilkinson, 545 U.S. at 225-26 (citations omitted).
As to the third factor, concerning the state’s
interests, the Court concluded that the value of some aspects of
a traditional adversarial hearing -- particularly the right to
call witnesses -- was “doubtful in comparison to” the danger
they posed. Wilkinson, 545 U.S. at 228. The Wilkinson Court
encouraged courts to consult the “informal, nonadversary
procedures” discussed in Hewitt v. Helms, 459 U.S. 460, 476
(1983), which were adequate to protect the prison’s interests in
security and order. Wilkinson, 545 U.S. at 229. In Hewitt, the
Supreme Court held that a nonadversarial process may be
sufficient so long as it provides “some notice of the charges
against [the inmate] and an opportunity to present his views to
37
the prison official charged with deciding whether to transfer
him to administrative segregation.” 495 U.S. at 476.
b.
Applying the Mathews factors, we conclude Appellant
has demonstrated a triable dispute on his procedural due process
claim. The record, viewed in the light most favorable to
Appellant, supports Appellant’s assertion that the Department’s
review process is inadequate and fails to honor the basic values
of procedural due process. This record, bereft of any evidence
that Appellant has ever received meaningful review, stands in
contrast to Wilkinson and falls short of satisfying Hewitt.
i.
Because Appellant has already been held in solitary
confinement for 20 years, he has a significant private interest
in leaving the restrictive conditions in the SMU and serving
some part of his remaining life sentence outside of solitary
confinement. Appellant’s private interest in this case, even if
“evaluated . . . within the context of the prison system and its
attendant curtailment of liberties,” is clear. Wilkinson, 545
U.S. at 225. Appellant’s life is severely restricted, and his
body is subjected to extraordinary intrusion on a regular basis.
United States v. Charters, 829 F.2d 479, 491 (4th Cir. 1987)
(“The right to be free of unwanted physical invasions has been
recognized as an integral part of the individual’s
38
constitutional freedoms . . . .”). And as the Supreme Court has
made clear, “administrative segregation may not be used as a
pretext for indefinite confinement of an inmate. Prison
officials must engage in some sort of periodic review of the
confinement of such inmates.” Hewitt, 459 U.S. at 477 n.9; see
also Wilkerson, 774 F.3d at 856 (looking disfavorably upon a
prison’s “rote repetition” of the original justification for
placing a prisoner in segregation to support continued
confinement, which rendered “his solitary
confinement . . . effectively indefinite” (internal quotation
marks omitted)).
ii.
The risk of erroneous deprivation is also exceedingly
high in this case for at least three reasons. First, the
Department has only a single-layered confinement review.
According to Department regulations, the ICC makes the sole
decision on which inmates are candidates for release. The
warden does not participate in the decision to release an inmate
unless the inmate files a grievance against the ICC’s decision
to continue detention. This stands in contrast to the multi-
layered procedural mechanism described by the Wilkinson Court.
See Wilkinson, 545 U.S. at 226-27.
Second, the Department regulations do not require the
ICC to furnish a factual basis for its decisions. Instead, it
39
need only “provide the inmate with a copy of its
recommendation.” J.A. 139. Moreover, in practice, the
Department’s process apparently only requires the ICC to give a
perfunctory explanation supporting its decision to continue to
hold Appellant in solitary confinement. The ICC has merely
rubber-stamped Appellant’s incarceration in the SMU
(figuratively and sometimes literally), listing in “rote
repetition” the same justification every 30 days. Wilkerson,
774 F.3d at 856 (internal quotation marks omitted). The policy
encourages “arbitrary decisionmaking” and risks the possibility
that the ICC may single out Appellant “for an insufficient
reason.” Wilkinson, 545 U.S. at 226. Indeed, the ICC’s ongoing
classification of Appellant is especially wanting for
explanation in light of his nearly perfect disciplinary record
while in security detention.
Third, the Department regulations do not grant
Appellant the right to contest the factual bases for his
detention before the ICC makes its decision -- either with
respect to his assigned behavior level or his candidacy for
release. The regulations merely provide, “[t]he inmate may be
present for the advancement/release review if security staffing
allows.” J.A. 138 (emphasis supplied). The fact that the ICC
is not required to provide a factual basis for its decision
further increases the “possibility of an erroneous deprivation”
40
because Appellant has no “basis for objection” to support his
grievance against the ICC’s decision. Wilkinson, 545 U.S. at
226.
Appellee nonetheless argues that its review process
“meets the flexible due process standard” approved in Wilkinson
because, compared to inmates confined in Ohio’s Supermax
facility, “Appellant’s custody is reviewed much more frequently”
-- that is, every 30 days as opposed to once a year. Appellee’s
Br. 39. However, in view of Appellant’s uncontested evidence
demonstrating the inadequacy of the Department’s confinement
review, this argument falls flat.
iii.
The third Mathews factor -- state interest -- accounts
for the Department’s need to maintain order and security in
South Carolina’s prisons. But as the Supreme Court noted in
Wilkinson and Hewitt, the prison’s interest does not eclipse
Appellant’s well-established right to receive notice of the
grounds for his ongoing confinement and to present his rebuttal
to those grounds.
We do not decide whether prison review mechanisms must
be as extensive as in Wilkinson in order to pass constitutional
muster. On the facts presented in this case, however, we
conclude that the record establishes a triable question of
41
whether the Department’s review process was adequate to protect
Appellant’s right to procedural due process.
IV.
The district court’s order of summary judgment is
affirmed as to Appellant’s RLUIPA claim and reversed as to his
procedural due process claim. We affirm the district court’s
holding with respect to Appellant’s RLUIPA claim because he has
failed to show that his religious beliefs, rather than his
choice to participate in a riot, are the proximate cause of his
continued solitary confinement. We reverse the district court’s
order on Appellant’s procedural due process claim because
Appellant has demonstrated a liberty interest in avoiding
solitary confinement and Appellee has not proven as a matter of
law that it provided Appellant meaningful review. We remand
this case for further proceedings consistent with this opinion.
AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED FOR FURTHER PROCEEDINGS
42