Opinion
99-CV-6208 CJS
September 4, 2003
Alien Leevon, Marcy, New York, for Plaintiff
Kelly A. McCarthy, Rochester, New York, for Defendants
DECISION and ORDER
INTRODUCTION
This prisoner civil rights suit is before the Court on plaintiff pro se's motion (# 14) for partial summary judgment and defendant's cross-motion (# 21) for summary judgment. Plaintiff contends that defendants violated his constitutional due process rights and asserts he is entitled to summary judgment against Glenn S. Goord and Richard Becker by reason of the Decision of the Honorable Mark H. Dadd, Acting Supreme Court Justice, Eighth Judicial District, Allen v. Goord, No. 18,425 (N.Y.Sup.Ct. Feb. 26, 1999) attached as Exhibit 5 to plaintiff's motion. For the reasons stated below, plaintiff's motion (# 14) for partial summary judgment is denied and defendants' cross-motion (# 21) for summary judgment is granted.
PROCEDURAL HISTORY
On May 20, 1999, plaintiff filed a complaint on a form issued by the Court. The form complaint included two claims under 42 U.S.C. § 1983 (2003). The first was against Richard Becker ("Becker"), individually and in his official capacity as Deputy Superintendent of Collins Correctional Facility ("Collins"). As to this claim, plaintiff contends that on January 15, 1998, at a disciplinary hearing in Collins, Becker improperly denied plaintiff's request for a witness to testify on his behalf. In his second claim, plaintiff alleges that on March 17, 1998, Glenn S. Goord ("Goord"), individually and in his capacity as Commissioner of the New York State Department of Correctional Services ("DOCS"), improperly denied his appeal from a conviction by Becker, as a result of the January 15th hearing, for violating two facility rules: 113.16 — money/unauthorized property and 102.10 — threats. Plaintiff also named DOCS as a defendant, based on the allegation that all of the complained of actions were done in the name of DOCS.
On September 2, 1999, the Honorable John Elfvin, of this court, entered a decision and order dismissing the claims against DOCS and defendants' Goord and Becker in their official capacities, directing the Clerk to terminate those parties. Thus, the only defendants remaining suit are Glenn S. Goord and Richard Becker, individually. Plaintiff filed his motion for partial summary judgment on December 1, 1999 and filed with it a statement of facts, as required by Local Rule of Civil Procedure 56. Defendants filed their cross-motion on February 11, 2000, along with a statement of facts.
The Local Rules of Civil Procedure were amended, effective May 1, 2003. As such, the relevant requirement is now contained in Local Rule of Civil Procedure 56.1.
BACKGROUND
Both defendants and plaintiff agree on the following facts. On January 2, 1998, plaintiff was incarcerated at Collins. On February 23, 1998, plaintiff was transferred to Attica Correctional Facility. Goord, was at all times relevant to this lawsuit, the Commissioner of DOCS. Becker was at all times relevant to this lawsuit, Deputy Superintendent for Programming at Collins. Becker was designated by Superintendent of the facility, Victor T. Herbert, to conduct Tier III disciplinary hearings on his behalf. See N.Y. COMP. CODES R. REGS. tit. 7, § 270.3 (2003). On January 2, 1998, corrections officers served plaintiff with a misbehavior report charging violations of two facility rules: 113.16 — money/unauthorized property and 102.10 — threats, in connection with incidents at the infirmary and B-2 door. Both violations were alleged to have occurred on January 2, 1998.
Becker commenced a Tier III hearing on January 12, 1998 and continued it through January 15, 1998. Plaintiff testified at the hearing, after which Becker played a taped interview of an inmate witness, Haughland. He then allowed plaintiff further opportunity to testify and respond. Plaintiff requested an inmate named Brown be called to testify, but Becker denied his application. According to the transcript of the hearing, attached as Exhibit B to Seeker's affidavit in opposition, the following exchange took place:
Becker: And what's Brown going to shed? What light is he going to shed on this? Let's visit that [while] we're talking.
Leevon He can testify that at the time at [sic.] this event at 12:30 I wasn't nowhere [sic.] near the back door. Because we was, I was going from the card room which is right next to the water fountain on B-2 and the day room — usually put the movie on, they usually put it on about 12:30, 1:00. And, . . .
Becker: So he's going to put you with him?
Leevon: Yeah.
Becker: Okay. Let me go on tape as granting that he'll put you with him, alright. I'm quite confident that Inmate Brown on B2-44 would do that. Would say that.
Tr. of Tier III Disciplinary Hearing, at 19-20 (attached as Ex. B to Richard Becker, Aff. in Opp'n to Pl.'s Mot. for Summ. J. and in Supp. of Cross-Mot, for Summ. J.).
Prior to plaintiff's disciplinary hearing, Becker had also presided over hearings for Haughland and Brown in connection with the January 2, 1998 incidents at the facility infirmary and B-2 door. In their proceedings, both Brown and Haughland had admitted to involvement with plaintiff in a drug smuggling operation, and both implicated plaintiff in the charge of possession of money. At the conclusion of plaintiff's Tier III disciplinary hearing, Becker found plaintiff guilty of violating Rule 113.16 (money/unauthorized property) and not guilty of violating rule 102.10 (threats). He recommended a punishment of 180 days in SHU, 180 days loss of recreation, packages, commissary, phone privileges and earphones, and also recommended a loss of good time.
On January 15, 1998, plaintiff was placed in SHU at Collins. While there, he was permitted visitors once per week and received one hour of outside recreation per day. He was also granted access to both general library books and the law library, had access to photos, legal work, as well as the opportunity to read books or magazines from his personal property. On January 30, 1998, plaintiff was moved to a keeplock cell at Collins. While on keeplock, he was permitted outside recreation, visits two days per week, restricted Commissary purchases, access to general library books and the law library, and was additionally given all of his personal property. On February 23, 1998, plaintiff was transferred to Attica Correctional Facility. There he was placed in a short-term keeplock in a double bunk cell and was granted access to general library books along with law library books and materials.
Keeplock inmates are confined to a cell, but retain all of their personal property, have the same visitation rights as general population inmates, and are allowed the same number of showers. Inmates in keeplock confinement status may utilize all of the services available to SHU inmates and receive additional benefits only available to general population inmates.
As a result of the January 15, 1998, finding by Becker, plaintiff spent fifteen days in SHU and a total of eighty three days in keeplock at two different facilities with different conditions of confinement. Further, he lost his privileges to receive packages and use headphones for ninety four days and was caused to forfeit his participation in the Family Reunion Program. Moreover, plaintiff also claims that he was denied parole for twenty-four months. However, he never suffered a loss of good time as a result of the disciplinary hearing.
Plaintiff appealed Becker's finding to Donald Selsky, Director, Special Housing/Inmate Discipline. On March 17, 1998, Selsky's office affirmed both Becker's guilty finding and the recommended sanctions. Through Norman P. Effman, Esq., an attorney with the Wyoming County Attica Legal Aide Bureau, Inc., plaintiff successfully brought a proceeding by Order to Show Cause before Justice Dadd in New York's Wyoming County Supreme Court. Justice Dadd vacated the January 15, 1998, disciplinary proceeding, directed that the records be expunged, and ordered a new hearing. He also ordered that plaintiff's inmate account be credited with any mandatory surcharge, which may have been imposed as a result of the vacated disciplinary proceeding. Pursuant to the Supreme Court order, Collins held a newdisciplinary hearing on April 14-15, 1999, at which plaintiff was found not guilty of the charge of violating rule 113.16 (money/unauthorized property).
Plaintiff's Local Rule 56 statement gives no further details about the April 1999 hearing.
As to this charge, the parties disagree on the crux of the allegations implicating plaintiff in forming its basis. More specifically, plaintiff's hearing before Becker involved a purported scheme to pass a one hundred dollar bill from plaintiff through Haughland to Brown. On the tape, which was played at the hearing, Haughland claimed that he met plaintiff while serving breakfast in the infirmary area on January 2, 1998, and that plaintiff told him to meet by the B2 door of the infirmary at 12:30 p.m. Haughland also maintained that plaintiff displayed a weapon to coerce him into cooperating. Haughland indicated that he went to the rear door of B2 at 12:30 p.m., knocked, and observed an individual, whom he later identified in a photo array as plaintiff, on the other side of the door. Immediately thereafter, according to Haughland, a one hundred dollar bill was slid under the door, and he picked it up. Haughland stated that he was thereafter stopped and frisked, at which time the one hundred dollar bill was discovered. Haughland also indicated on the tape that he eventually confessed to the entire scheme, and indicated that he was supposed to have given the one hundred dollar bill to inmate Brown. Plaintiff disputes Haughland's statement and in that regard, desired to call inmate Brown as an alibi witness, despite his earlier contention that he did not know Brown. See, Tr. at 6. At the hearing, plaintiff claims, "[t]he only Inmate Brown I know locks on B2-44 Bed in the 15 man room." Tr. at 13; see also, Tr. at 19 (plaintiff alleges he does not know inmate Brown but was going to call him for his witness). Plaintiff sheds some light on this confusion in his answer to defendants' Local Rule 56 statement in which he states that he was calling a different inmate Brown to be his witness and not inmate Brown, 92-A-2098, to whom Becker referred in the hearing. See, Tr. at 6. This confusion between the two inmates named Brown, the one an alleged co-conspirator in a drug conspiracy with plaintiff, and the other, plaintiff's alleged alibi witness, was never resolved by Becker. However, as Becker explains in his affidavit, he assumed that the Brown who was going to testify as plaintiff's alibi witness was the very Brown who was the subject of the hearing involving the conspiracy to smuggle drugs, over which Becker had previously presided. Consequently, based upon Becker's belief that the two Browns were the same person, defendants claim that Becker's refusal to allow Brown to testify did not violate plaintiff's rights to due process because granting the request would have been "unduly hazardous to institutional safety or correctional goals." Ponte v. Real, 471 U.S. 491, 495 (1985) (quoting Wolff v. McDonnell, 418 U.S. 539, 566 (1980)).
LEGAL STANDARDS
A. Summary Judgment Standard
The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, depositions, answers to interroga-tories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. Civ. P. 56(c). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). "[T]he movant must make a prima facie showing that the standard for obtaining summary judgment has been satisfied." 11 MOORE'S FEDERAL PRACTICE, § 56.11[1][a] (Matthew Bender 3d ed.). That is, the burden is on the moving party to demonstrate that the evidence creates no genuine issue of material fact. See Amaker v. Foley, 274 F.3d 677 (2d Cir. 2001); Chipollini v. Spencer Gifts, Inc., 814 F.2d 893 (3d Cir. 1987) (en bane). Where the non-moving party will bear the burden of proof at trial, the party moving for summaryjudgment may meet its burden by showing the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial. See Celotex Corp. v. Catreti, 477 U.S. 317, 322-23(1986).
Once that burden has been met, the burden then shifts to the non-moving party to demonstrate that, as to a material fact, a genuine issue exists. FED. R. Civ. P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A fact is "material" only if the fact has some affect on the outcome of the suit. Catanzaro v. Weiden, 140 F.3d 91, 93 (2d Cir. 1998). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. In determining whether a genuine issue exists as to a material fact, the court must view underlying facts contained in affidavits, attached exhibits, and depositions in the light most favorable to the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962). Moreover, the court must draw all reasonable inferences and resolve all ambiguities in favor of the non-moving party. Leon v. Murphy, 988 F.2d 303, 308 (2d Cir. 1993); Anderson, 477 U.S. at 248-49; Doe v. Dep't of Pub. Safety ex rel. Lee, 271 F.3d 38, 47 (2d Cir. 2001), rev'd on other grounds; Connecticut Dep't of Pub. Safety v. Doe, __ U.S. __, 123 S.Ct. 1160 (2003); Int'l Raw Materials, Ltd. v. Stauffer Chem. Co., 898 F.2d 946 (3d Cir. 1990). However, a summary judgment motion will not be defeated on the basis of conjecture or surmise or merely upon a "metaphysical doubt" concerning the facts. Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)); Knight v. United States Fire Ins. Co., 804 F.2d 9 (2d Cir. 1986). Rather, evidentiary proof in admissible form is required. FED. R. Civ. P. 56(e). Furthermore, the party opposing summary judgment "may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant's previous deposition testimony." Hayes v. New York City Dep't of Corrections, 84 F.3d 614, 619 (2d Cir. 1996).
B. Procedural Due Process Standard
The Court need not conduct an analysis of whether the protective procedures afforded to plaintiff at his disciplinary hearing passed constitutional muster "unless `there exists a liberty or property interest which has been interfered with by the State.'" Carter v. Camero, 905 F. Supp. 99, 103 (W.D.N.Y. 1995) (quoting Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 460 (1989)). Second Circuit case law provides that determining whether an inmate has received procedural due process involves a "two-pronged inquiry: (1) whether the plaintiff had a protected liberty interest in not being confined . . . and, if so, (2) whether the deprivation of that liberty interest occurred without due process of law." Bedoya v. Coughlin, 91 F.3d 349, 351-52 (2d Cir. 1996); Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir. 1997). Moreover, in Sandin v. Conner, 515 U.S. 472 (1995), the Supreme Court held that a prisoner cannot claim a protected liberty interest unless he demonstrates that he was subjected to "atypical and significant hardship[s] . . . in relation to the ordinary incidents of prison life." Sandin, 515 U.S. at 484. To meet the Sandin atypical and significant hardship standard, a disciplinary sanction must be clearly "onerous." Jenkins v. Haubert, 179 F.3d 19, 28 (2d. Cir. 1999).
Pursuantto 42 U.S.C. § 1997e(a) (2003), "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner . . . until such administrative remedies as are available are exhausted." This section has been interpreted as an affirmative defense, one which is waived if not raised by defendants. See Jenkins v. Haubert, 179 F.3d 19, 28-29 (2d Cir. 1999); accord Perez V. Wisconsin Department of Corrections, 182 F.3d 532, 536 (7th Cir. 1999). Defendants have not raised this issue by way of a motion to dismiss, or in their answer, or by the summary judgment motion now before the Court. Thus, the Court finds defendants have waived the exhaustion requirement.
Although Special Housing Unit ("SHU") confinement may impose hardships that are atypical or significantly different from the burdens of ordinary prison confinement, SHU confinement in New York "generally does not impose [an] atypical and significant hardship because it remains within the normal range of prison custody." Trice v. Clark, No. 94-CV-6871(SAS), 1996 U.S. Dist. LEXIS 6644 at *8 (S.D.N.Y. May 16, 1996); Frazier v. Coughlin, 81 F.3d 313 (2d Cir. 1996) (plaintiff's sentence fell within expected parameters of sentence imposed by court); Carter, 905 F. Supp. 99 (no protected liberty interest in not being assigned to SHU). The Second Circuit has not established a bright-line rule regarding the length or type of disciplinary sanction that meets the Sandin standard. However, the Circuit has suggested that SHU confinement for a period of less than 101 days would not meet the standard, and emphasized that when undertaking a Sandin analysis, a court must examine "the extent to which the conditions of the disciplinary segregation differ from other routine conditions and . . . the duration of the disciplinary segregation imposed compared to discretionary confinement." Wright v. Coughlin, 132 F.3d 133, 136 (2d Cir. 1998); Colon v. Howard, 215 F.3d 227, 231-32 (2d Cir. 2000).
C. Personal Involvement Standard
It is well settled in this Circuit that a plaintiff must show that the defendant was personally involved in the constitutional depravation in order to prove a claim under 42 U.S.C. § 1983 (2003). Johnson v. Newburgh Enlarged School Dist, 239 F.3d 246, 254 (2d Cir. 2001); Gaston v. Coughlin, 249 F.3d 156, 164 (2d. Cir. 2001); Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995). In this regard, a prison official may be found to be personally involved in one of the following ways: (1) by directly participating in the deprivation; (2) as a supervisory official, and after learning of a violation, by failing to remedy the violation when he had the authority to do so; (3) as a supervisory official, by creating a policy or custom under which the depravation occurs; or (4) as a supervisory official, by gross negligence in management of subordinates who caused the wrong. Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986).
ANALYSIS
A. Procedural Due Process Claim
What must be determined in this case, is whether the fifteen days of SHU confinement and a total of eighty-three days in keeplock in two different facilities with different conditions of confinement, implicated a liberty interest that entitled plaintiff to due process protections. Based upon the applicable principles of law, the Court finds, upon its review of the entire record, that plaintiff has failed to sufficiently allege a protected liberty interest.
Where the length of confinement imposed is different from the time actually served, the duration of the confinement actually served is the appropriate time period to be analyzed for purposes of determining whether plaintiff had a liberty interest that triggered due process protections. Colon, 215 F.3d at 231. Here, it is the fifteen days in SHU and eighty three days in keeplock, not the 180 day disciplinary sentence originally imposed.
As previously indicated, the Second Circuit has suggested that SHU confinement for a period of less than 101 days, without further deprivation, would not meet the Sandin atypical and significant hardship standard. See Colon, 215 F.3d at 231-32; see also Williams v. Goord, 111 F. Supp.2d 280, 289 (holding that seventy five days in SHU is insufficient); Jackson v. Johnson, 15 F. Supp.2d 341, 361-62 (S.D.N.Y. 1998) (holding that ninety nine days is insufficient); Trice, No. 94-CV-6871(SAS), 1996 U.S. Dist. LEXIS 6644, at*8 (holding that 150 days in SHU is insufficient).
Here, plaintiff has not alleged that the conditions of his confinement were of the level of deprivation, required under Sandin, to require due process protections. Ordinary SHU confinement in New York involves various restrictions that are placed on an inmate's privileges relative to his prior status in the general population. See N.Y. COMP. CODES R. REG. tit. 7, §§ 300.1-.14 (2003). More specifically, inmates confined in the SHU are restricted in their telephone use, their personal belongings are restricted, they have restricted shower use, they are permitted only one nonlegal visit per week, and they only receive one hour per day outside of their cells for exercise. Id.
In this case, the evidence concerning the conditions and duration of plaintiff's confinement is undisputed. Plaintiff was permitted visitors once per week and received one hour of outside recreation per day while confined in the SHU. He also had access to both general library books and the law library, and to photos and legal work, along with reading books and magazines from his personal property. While on keeplock, plaintiff was permitted outside recreation, visits two days per week, restricted Commissary purchases, access to general library books and the law library, and he was given all of his personal property. Moreover, he never suffered a loss of good time as a result of the disciplinary hearing. Consequently, plaintiff's confinement appears to have been less restrictive than ordinary SHU confinement. "These conditions, while perhaps undesirable, `generally do not impose an atypical and significant hardship because they remain within the normal range of prison custody.'" Alvarado v. Kerrigan, 152 F. Supp.2d 350, 355 (S.D.N.Y. 2001) (quoting Trice, No. 94-CV-6871(SAS), 1996 U.S. Dist. LEXIS 6644, at *8) As such, plaintiff's confinement created no liberty interest under Sandin that would require due process protections.
Furthermore, plaintiff had no liberty interest with regards to the allegation that the disciplinary hearing affected his parole because "there is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence." Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 7 (1979). Since there is no entitlement to parole created by New York's parole provisions, any alleged unfairness in plaintiff's parole hearing cannot establish a basis for relief under 42 U.S.C. § 1983 (2003). See Boothe v. Hammock, 605 F.2d 661, 664 (2d Cir. 1979); Russo v. New York State Board of Parole, 50 N.Y.2d 69, 75 (1980).
Likewise, plaintiff's liberty interests were not violated by his transfer to a more secure prison. Neither the Fourteenth Amendment independently, nor New York law, accords an inmate a liberty interest in remaining at a particular prison facility. Montanye v. Haymes, 427 U.S. 236, 242 (1976).
Finally, plaintiff's liberty interests were not implicated by the forfeiture of his participation in the Family Reunion Program, his use of headphones, and his ability to receive packages. It is well-established that such things are a privilege for inmates, not a right. See Block v. Rutherford, 468 U.S. 576, 589 (1984); Gatson v. Selsky, No. 94-CV-292(RSP/GJD), 1997 WL 159258, at *3 (N.D.N.Y. Apr. 4, 1997) (inmate's loss of Family Reunion Program visits does not give rise to liberty interest). They are entirely within the discretion of prison officials. Gatson, 1997 WL 159258, at *3; Henry v. Coughlin, 940 F. Supp. 639, 643-44 (S.D.N.Y.1996) (finding no liberty interest where plaintiffs regular visitation rights were suspended on days when he had Family Reunion Program visits.) Defendants have, therefore, established that plaintiff will not be able to show he had a liberty interest in not being confined, as required by Bedoya, 91 F.3d. at 351-352. In that regard, since the Court finds that plaintiff did not possess a protected liberty interest, it is unnecessary for the Court to address whether defendants' refusal to allow Brown to testify violated plaintiff's right to due process or whether defendants were entitled to qualified immunity. Accordingly, defendants are entitled to summary judgment.
Plaintiff was denied the use of headphones and the ability to receive packages for ninety four days. There is no information in the record regarding whether plaintiff was readmitted into the Family Reunion Program.
B. Personal Involvement of Defendant Goord
In addition to the above grounds for dismissal of the complaint in toto, an additional ground for dismissal as against Goord, is his lack of personal involvement in any of the alleged deprivations of plaintiffs rights. The complaint does not allege that Goord directly participated in the alleged deprivations, that Goord created a policy or custom under which any inappropriate conduct occurred, that Goord was grossly negligent in the management of subordinates who caused the wrong, or that Goord, after learning of a violation, failed to remedy the violation when he had the authority to do so. In addition, Goord denies personal knowledge of the alleged deprivations described in the complaint. Nevertheless, plaintiff attempts to link Goord to his claims based on his contention that Goord is responsible for Donald Selsky's actions, as Selsky was Goord's designee for reviewing disciplinary hearing appeals. However, the Second Circuit has "previously recognized that where a commissioner's involvement in a prisoner's complaint is limited to forwarding of prisoner correspondence to appropriate staff, the commissioner has insufficient personal involvement to sustain a . . . cause of action." Garvin v. Goord, 212 F. Supp.2d 123, 126 (W.D.N.Y.2002). Based on the foregoing, defendant Goord's motion for summary judgment is granted.
CONCLUSION
In view of the above, the Court denies plaintiff's motion (# 14) for partial summary judgment and grants defendants' cross-motion (# 21) for summary judgment. Plaintiff's complaint is, therefore, dismissed.
The Court hereby certifies, pursuant to 28 U.S.C. § 1915(a)(3) (2003), that any appeal from this judgment would not be taken in good faith and therefore denies leave to appeal as a poor person. Coppedge v. United States, 369 U.S. 438 (1962). Plaintiff must file any notice of appeal with the Clerk's Office, United States District Court, Western District of New York, within thirty (30) days of the date of judgment in this action. Requests to proceed on appeal as a poor person must be filed with the United States Court of Appeals for the Second Circuit in accordance with the requirements of Rule 24 of the Federal Rules of Appellate Procedure.