Opinion
00 Civ. 8994 (HB)
October 24, 2001
OPINION ORDER
Pro se plaintiff Robert Roston ("Roston") seeks money damages under 42 U.S.C. § 1983 ("§ 1983") for violations of his due process and equal protection rights in connection with the decision of the Time Allowance Committee ("TAC") of the Green Haven Correctional Facility ("Green Haven TAC") not to restore "good time credits" he had accrued while a prisoner at the Collins Correctional Facility ("Collins); defendants moved to dismiss the complaint. For the reasons discussed below, defendants' motion to dismiss the due process claim is denied, and their motion to dismiss the equal protection claim is granted.
Defendants style their motion as a motion to dismiss and/or for summary judgment, but because their arguments go no further than that Roston's allegations do not state a claim under § 1983, I will treat the motion as only a motion to dismiss.
BACKGROUND
As I must, I take the facts as pled to be true on this motion to dismiss pursuant to Fed R Civ. P. 12(b)(6); and, because Roston is a pro se plaintiff, I will liberally construe his amended complaint and brief in opposition to the defendants' motion. See Lerman v. Board of Elections, 232 F.3d 135, 139-140 (2d Cir. 2000). Further, I will consider those allegations made by Roston during the two pre-trial conferences in my chambers at which both parties were in attendance.
Roston is a former prisoner who was released from a New York State prison in July 2000, two years before completing his "full sentence," — i.e., the maximum term of his sentence — in recognition of his "good time credits." Under New York law a prisoner may accrue so-called "good time credits" for "positive efforts made during incarceration," and may forfeit such credits as punishment following disciplinary proceedings. The Time Allowance Committee ("TAC") of the prison in which the individual is incarcerated is empowered to recommend the amount of the good behavior allowance. If the prisoner loses good time credits pursuant to a disciplinary proceeding, "the [TAC] shall consider whether, and set forth its recommendation as to whether, the inmate's subsequent behavior merits restoration of all or part of the lost allowance and its reasons therefore." 7 NYCRR § 261.3(b). When the "the total good behavior time allowed to him . . . is equal to the unserved portion of his term," a prisoner may be conditionally released from prison. N.Y. Penal Law § 70.40.1(b).
See 7 NYCRR § 260.1 ("[t]he opportunity to earn good behavior allowances offers inmates a tangible reward for positive efforts made during incarceration"); 7 NYCRR § 260.3 ("[i]n evaluating the amount of allowance to be granted, the statutory criteria (i.e., good behavior, efficient and willing performance of duties assigned, progress and achievement in an assigned treatment program) shall be viewed in the light of the following factors: (1) the attitude of the inmate; (2) the capacity of the inmate; and (3) the efforts made by the inmate within the limits of his capacity").
See 7 NYCRR § 261.3.
See 7 NYCRR § 261.2 ("The purpose of the time allowance committee shall be to make recommendations as to the amount of good behavior allowance to be granted to inmates who are eligible to be considered for such allowance.").
On May 27, 1999, Roston appeared before the Collins TAC following disciplinary hearings at which the hearing officer recommended that he lose 57 months of good time credits. The Collins TAC recommended the restoration of 45 months of good time credits, later adopted by the Collins Superintendent, which resulted in a September 2000 conditional release date. Shortly thereafter, Roston was transferred to Green Haven, and he commenced a § 440.10 action in the New York State Supreme Court in which he argued that his sentence should have run concurrently rather than consecutively. In September 1999, the New York State Supreme Court granted Roston's § 440.10 motion and reduced his sentence (a minimum of 9.5 to a maximum of 19 years) to 7.5 to 15 years. As a result of his reduced sentence and his restored good time credits, Roston was immediately eligible for conditional release. However, following a hearing on September 30, 1999, the Green Haven TAC refused to adopt the recommendation of the Collins TAC, stating the Roston had a "poor disciplinary record" and "failed to address programmatic concerns" (the meaning of which is unknown to me) and recommended that only 12 months of the 57 months of accrued good time credit be restored, resulting in a September 2000 release date, the same date calculated by the Collins TAC prior to Roston's successful § 440.10 action. Put another way, the Green Haven TAC reversed the decision of the Collins TAC to restore 45 of the 57 months of good time credit, and apparently did so to prevent the modification of Roston's sentences from consecutive to concurrent from effecting the release date previously set by the Collins TAC.
See 7 NYCRR § 261.2:
"(a) After consideration of the file by the committee, and after fulfilling any other requirements set forth in this Subchapter, the committee shall make a recommendation to the superintendent as to the amount of good behavior allowance to be accorded to the inmate.
(b) The superintendent shall promptly review the report of the committee and shall endorse any comments he may deem appropriate thereon and immediately forward the report of the committee and his comments, if any, to the commissioner or his designee.
(c) The commissioner or his designee will then transmit to the superintendent an order either confirming or modifying the amount of time to be granted or, remand the matter back to the committee for reevaluation and a hearing in accordance with section 261.4 of this Title."
Roston successfully challenged the decision of the Green Haven TAC in an Article 78 proceeding before the New York Supreme Court, which held that the Green Haven TAC "went beyond the scope of its authority in considering the good time behavior allowance issue anew and "did not follow its own regulations." Decision Judgment, Index No. 66-00 (NY. Sup. Ct. May 24, 2000) (Justice Thomas D. Nolan, Jr.). Following the Article 78 proceeding, the decision of the Collins TAC was reinstituted, and Roston was conditionally released in July 2000. Roston filed the instant § 1983 action on August 21, 2000 asserting claims against individuals involved in the Green Haven TAC decision, and later amended his complaint on June 21, 2001 ("amended complaint").
DISCUSSION
Defendants move to dismiss the complaint on three grounds: (1) Roston did not have a constitutional right to be conditionally released; (2) defendants' alleged failure to comply with the state regulations does not give rise to a § 1983 action; and (3) Roston has not expressly alleged an "equal protection" claim Roston, who is pro se, opposed the motion.
Motion To Dismiss Standard
In deciding a motion to dismiss under Rule 12(b)(6) for failure to state a claim upon which relief may be granted, the court "must accept the material facts alleged in the complaint as true." Cohen v. Koenig, 25 F.3d 1168, 1172 (2nd Cir. 1994). Dismissal is appropriate only where "it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle him to relief" Conley v. Gibson, 355 U.S. 41, 45-46 (1957). "The task of the court in ruling on a Rule 12(b)(6) motion is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof" Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir. 1998) (internal quotation marks omitted).
Due Process
To state a claim under 42 U.S.C. § 1983 ("§ 1983") a complaint must allege that the defendant denied plaintiff a constitutional or federal statutory right and that such denial was effected under color of state law. See Patterson v. Coughlin, 761 F.2d 886, 890 (2d Cir. 1985). To state a § 1983 claim for denial of procedural due process, a plaintiff must allege a liberty or property interest that is protected by the Constitution or federal statutes, and identify the process which was due and denied. Green v. Bauvi, 46 F.3d 189 (2d Cir. 1995). As defendants correctly point out, although states are bound to follow procedures before taking actions adverse to individuals, "the failure of a State authority to comply with State regulations cannot alone give rise to a § 1983 cause of action" Concourse Rehabilitation Nursing Ctr. Inc. v. DeBuono, 179 F.3d 38, 43 (2d Cir. 1999), unless the deprivation implicates a liberty interest. See Patterson v. Coughlin, 761 F.2d 886, 891 (2 Cir. 1985) ("[a]lthough a state employee's failure to conform to state law does not in itself violate the Constitution and is not alone actionable under § 1983 . . . [i]t has long been settled that unconstitutional conduct that also violates state law is still actionable under § 1983).
A liberty interest may arise by virtue of the due process clause itself or may be created independently by the state; however, in order for a liberty interest arising under state law and touching conditions in a state prison to trigger the protections of the due process clause, (1) the confinement or restraint must create an atypical and significant hardship in relation to the ordinary incidents of prison life; and (2) the state must have granted its inmates, by regulation or statute, a protected liberty interest in remaining free from that confinement or restraint. Hynes v. Squillace, 143 F.3d 653, 658 (2d Cir. 1998). As the Supreme Court has said, so long as the conditions are "within the normal limits or range of custody which the conviction has authorized the State to impose," Sandin v. Conner, 515 U.S. 472, 478 (1995), no liberty interest is involved.
The first step, therefore, in assessing the validity of Roston's procedural due process claim is to determine whether Roston has a liberty interest in his accrued good time credits, either through the Due Process clause itself, or through the operation of New York State law. Defendants argue that Roston does not have such a liberty interest because neither the Constitution nor state law provides a right to conditional release before serving a full sentence. See Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 7 (1979) (no constitutional right to early release); Rosemon v. Menifee, 137 F. Supp.2d 270 (S.D.N.Y. 2000) ("whether Penal law § 70.40(1)(b) creates a constitutionally protected liberty interest in conditional release remains an open question in this Circuit"). Defendants' argument is correct so far as it goes, but its applicability here is questionable since Roston does not argue that he had a right to conditional release under § 70.40(1)(b); instead, he argues that the Green Haven TAC violated his procedural due process rights by wrongfully rejecting the binding decision of the Collins TAC and depriving him of accrued good time credits, a related, but entirely distinct claim. Put another way, Roston argues that he had a liberty interest in keeping his good time credits regardless of whether they entitled him to early release. Indeed, Second Circuit law clearly establishes that "inmates have a liberty interest in good time credit they have already earned." Abed v. Armstrong, 209 F.3d 63, 66-67 (2d Cir. 2000); accord Cesipedes v. Coughlin, 956 F. Supp. 454, 472-473 (1997) Rivera v. Coughlin, 92 civ. 3404, 1996 U.S. Dist. LEXIS 560, *18 (S.D.N.Y. 1996); Mahotep v. Deluca, 3 F. Supp.2d 385, 390 (W.D.N.Y. 1998); Edomonso v. Coughlin, 95 civ. 97H, 1996 U.S. Dist. LEXIS 15944 (W.D.N.Y. 1996) (listing cases).
Roston's case, however, presents a complicating factor; his good time credits were restored by the Article 78 court on May 24, 2000, shortly after which he was released from prison. Recent case law within the Circuit suggests that where good time credits were reinstated by administrative appeal or subsequent state action, no liberty interest exists and no lawsuit can prevail. See Laws v. Cleaver, 140 F. Supp.2d 14S, 151-155 (D. Conn 2001); Walker v. Bates, 23 F.3d 652 (2d Cir. 1994). InLaws v. Cleaver, the court adopted the so-called "no-harm-no-foul" approach, and held that "[d]ue to plaintiff's successful administrative appeal and the restoration of his good time credits, he had no liberty interest in those credits for due process purposes, even though at the time he brought suit they had not yet been restored." Id. at 153; accord Black v. Selsky, 15 F. Supp.2d 311, 316 (S.D.N.Y. 1998); Cespedes, 956 F. Supp. at 473-474; Wright v. Coughlin, 31 F. Supp.2d 301 (S.D.N.Y. 1998) (credits restored by Article 78 proceeding). Thus, Laws would seem to dictate the Roston lost his liberty interest in the good time credits when his Article 78 petition was granted by the state court on May 24, 2000.
The rule articulated in Laws, however, applies only where the good time credits are restored before the prisoner was eligible for conditional release. Laws, 140 F. Supp. 2d at 153 (plaintiff did not lose good time credits, "because the violation and penalty was reversed before it had any opportunity to affect the length of his sentence"); see e.g. Young v. Hoffman, 970 F.2d 1154 (2d Cir. 1992) (penalty and loss of good time credits were vacated before the inmate began to serve the penalty);Cespedes, 956 F. Supp. at 475 (whether plaintiff was deprived of a liberty interest turned upon whether the loss of the good time credits "could have any impact on the length of his sentence"). Here, we have a different case. Roston was eligible for release 8 months before his credits were judicially restored. In September 1999, a state court granted Roston's § 440.10 motion and reduced his sentence such that it would terminate in January 2002. Roston was entitled to 45 months good credit, and thus was eligible for immediate release. Nonetheless, Roston spent an additional 8 months in prison until the New York State Supreme Court restored the good time credits wrongfully stripped by the Green Haven TAC in September 1999. See Walker, 23 F.3d at 657-659 (the administrative appeal did not cure the due process violation, since the plaintiff was released after he had served part of his punitive confinement in the special housing unit ("SHU")).
Having decided that Roston had a liberty interest in his good time credits, let's determine whether he was deprived of procedural due process in connection with the decision of the Green Haven TAC. A disciplinary conviction violates due process is if is not supported by some evidence. See Superintendent, Mass. Correctional Inst., Walpole v. Hill, 472 U.S. 445, 455-56 (1985); Wolff v. McDonnell, 418 U.S. 539, 563-67 (1974). To my knowledge, no case law, in this Circuit or elsewhere, discusses the procedural due process rights that accrue to prisoners who appear before time allowance committees (as opposed to disciplinary hearings), but it is a distinction without a difference. TACs are part of the disciplinary process, and their recommendations are a necessary step in the deprivation of good time credits, which, as discussed above, implicates procedural due process. Here, construing the complaint broadly, Roston alleges that the Green Haven TAC was empowered to deprive him of good time credits only on the basis of his conduct subsequent to the decision of the Collins TAC. Since, as the New York State Supreme Court found in the Article 78 hearing, Roston had not been the subject of any misbehavior report after his transfer to Green Haven, the Green Haven TAC decision was unsupported by any evidence. See Superintendent, Mass. Correctional Inst., Walpole, 472 U.S. at 455-56 (some evidence must exist to support the disciplinary conviction); Friedl v. City of New York, 210 F.3d 79, 85 (2d Cir. 2000). Clearly, then, the Green Hills TAC deprived Roston of due process.
Under Wolff, An inmate may not be deprived of a liberty interest unless the inmate receives: 1) written notice of the hearing at least 24 hours in advance; 2) an opportunity, when consistent with institutional safety and correctional goals, to call witnesses and present documentary evidence in his defense; and 3) a written statement by the fact finder of the evidence relied on and the reasons for the disciplinary action. 418 US at 563-67.
Defendants argued that even if Roston has otherwise stated a § 1983 claim, his claim must be dismissed since the Article 78 proceeding was an adequate post-deprivation remedy. When reviewing alleged procedural due process violations, the Supreme Court has distinguished between (a) claims based on random, unauthorized acts by state employees and (b) claims based on established state procedures. See Parratt v. Taylor, 451 U.S. 527, 541 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327 (1986); Hudson v. Palmer, 468 U.S. 517, 532 (1984). In the former situation — claims based on random or unauthorized acts — due process is not violated so long as the State provides a meaningful post deprivation remedy, see Hudson, 468 U.S. at 531, 533. However, when the deprivation occurs in the more structured environment of established state procedures, rather than random acts, the availability of post deprivation procedures will not, ipso facto, satisfy due process. See Hudson, 468 U.S. at 532; Logan v. Zimmerman Brush Co., 455 U.S. 422, 435-36; HANACC, 101. F.3d at 880. A deprivation falls into this latter category when "the conduct of the state's agent that resulted in the deprivation was such as to make the injury unforeseeable when viewed from the position of one who possesses the state-delegated authority" to provide due process. Patterson v. Coughlin, 761 F.2d 886, 892 (2d Cir. 1985) (where prisoner given a deficient hearing the deprivation of liberty was foreseeable and "authorized").
As the Second Circuit very recently noted: "The rationale for this principle is plain: because the challenged misconduct is random and unauthorized, it is impossible for the government to anticipate and prevent the wrongful loss of liberty or property in advance, and it has no realistic alternative other than to adopt remedies capable of righting the wrong after the deprivation." Locurto v. Safir, 00 civ. 7628, 2001 U.S. App. LEXIS 19174, *46 (2d Cir. 2001). "An Article 78 proceeding is adequate for due process purposes even though the petitioner may not be able to recover the same relief that he could in a § 1983 suit."Hellenic Am. Neighborhood Action Comm. v. City of New York ("HANACC"), 101 F.3d 877 (2d Cir. 1996).
In Patterson, the Second Circuit discussed the application of theParratt v. Taylor, 451 U.S. 527, 541 (1981) line of cases to prisoner disciplinary hearings. 761 F.2d at 886. There, the plaintiff alleged that his due process rights were violated when he was not allowed to call witnesses at his disciplinary hearing. The government opposed on the ground that plaintiff's claim was based upon random and unauthorized acts by state officials, see Parratt, 451 at 541, and that plaintiff had obtained a meaningful post-deprivation relief in a subsequent Article 78 hearing. See Patterson, 761 F.2d at 892. The Court rejected the government's argument and determined that the denial of the plaintiff's due process right to call witnesses gave rise to a claim based upon established state procedures, and that therefore the Article 78 proceeding could not foreclose relief under § 1983:
"Unlike the deprivation of property that occurred in Parratt, here the responsible state officials who had the power to grant appellant a hearing obviously knew that appellant was in peril of being deprived of his liberty interest. In fact, he was given a hearing, albeit a deficient one. Thus, the deprivation of liberty was neither `random' nor `unauthorized.'" . . .
"In view of our holding that an adequate prior hearing was required, a post deprivation hearing, by way of an Article 78 proceeding or an action for damages in the Court of Claims, is inadequate, by definition, to meet the requirements of due process."Id. at 792; see Hudson, 468 U.S. at 532 Here, Roston's deprivation occurred through the Green Haven TAC's decision alone and not as a result of an unauthorized employee's random acts. Thus, as in Patterson, Roston's Article 78 proceeding was by definition inadequate, even though it ultimately restored his good time credits. See Acevedo v. Surles, 778 F. Supp. 179 (S.D.N.Y. 1991) (post-deprivation Article 78 proceeding is inadequate to cut off plaintiff's federal claim).
Today, the vitality of Patterson in cases concerning deprivations in the context of prison, disciplinary hearings is somewhat uncertain, as is the distinction between claims based on "random and authorized" acts and claims based on "established state procedures." Indeed, inLocurto v. Safir, the Second Circuit acknowledged "the uncertainty of this area of the law, but "decline[d] to foray into this legal thicket absent some real need to address the question." Locurto, 2001 U.S. App. LEXIS 19174 (August 27, 2001) at *51 50. Here, since the Second Circuit has never overruled Patterson and it clearly counsels against dismissal of the prisoner's pro se claim, I will deny the defendants' motion to dismiss the due process claim.
In Laws v. Cleaver the district court characterized Patterson as being of "doubtful validity," but in discussing Patterson at all Laws is the exception. See Laws, 140 F. Supp.2d 145. Two possible reasons for this judicial silence come to mind: first, the Supreme Court's decision in Sandin v. Conor, 515 U.S. 653 [ 515 U.S. 472] (1995) scaled back prisoner liberty interests and radically transformed the prisoner due process terrain so as to make earlier decisions of debatable precedential value; and second, no post-Sandin court, that I am aware of has reached the Parratt stage of the procedural due process analysis in a case concerning prison disciplinary actions, since in all such cases the plaintiff's good time credits were restored before the length of sentence was effected and a liberty interest created.
Therefore, I find that Roston has stated a procedural due process claim and defendants' motion to dismiss this claim is denied.
The Supreme Court's decision in Edward v. Balisok, 520 U.S. 641 (1997) has no bearing on Roston's procedural due process claim. In that case, the Court held that due process claims regarding the loss of good time credits are not cognizable under § 1983 and must be brought through habeas petitions, unless the deprivation of good time credits had already been invalidated. Here, the New York Supreme Court had already invalidated the Green Haven TAC decision in the Article 78 proceeding before Roston filed the instant action under § 1983.
Equal Protection
The Fourteenth Amendment to the United States Constitution provides that "no state shall . . . deny to any person within its jurisdiction the equal protection of the laws," and is "essentially a direction that all persons similarly situated should be treated alike." See City of Cleburne, Texas v. Cleburne Living Center, 473 U.S. 432 (1985). Here, Roston does not allege that he is a member of a protected class, but rather alleges that he is being discriminated against because he initiated state litigation, the § 440.10 motion, that resulted in the reduction of the maximum term of his sentence. That allegation is not sufficient to state an equal protection claim.
CONCLUSION
For the reasons discussed above, defendants' motion to dismiss and/or for summary judgment is granted as to the equal protection claim, but is denied as to the due process claim. A scheduling conference will be held in Chambers on Wednesday November 10, 2001 at 10:00 am