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November 22, 1982

Richard FLOWERS, Plaintiff,
Thomas COUGHLIN, III, Commissioner; C. E. DuFrain; W. F. Barkley; Arthur Leonardo; Ron Haddad and E. S. LeFevre, Defendants

James T. Foley, Senior District Judge.

The opinion of the court was delivered by: FOLEY


JAMES T. FOLEY, Senior District Judge.

 By Memorandum-Decision and Order dated January 29, 1982, I directed the filing and service of the pro se civil rights complaint in this action. Plaintiff, an inmate at Clinton Correctional Facility, Dannemora, New York, seeks damages and injunctive relief from the defendants for his involuntary placement and continued confinement in the Assessment and Program Preparation Unit at Clinton. After filing and service of the complaint herein, in which plaintiff alleges violations of his Sixth, Eighth, Thirteenth and Fourteenth Amendment rights, plaintiff moved for a temporary restraining order, preliminary injunction and summary judgment. Defendants filed a cross-motion for summary judgment pursuant to Fed.R.Civ.P. 56(c) before filing an answer.

 Prisoners' Legal Services of New York, Plattsburgh Office, now represents the plaintiff in this matter and has filed opposition to defendants' motion for summary judgment. As noted in his opposition, plaintiff's request for a temporary restraining order and preliminary injunction, as well as his motion for summary judgment have been withdrawn. Therefore, presently before the court is only defendants' motion for summary judgment.

 For the reasons stated hereinafter, defendants' motion for summary judgment is denied in relation to plaintiff's claim in the complaint based upon the Fourteenth Amendment due process clause and is granted in relation to the claims in the complaint based upon alleged violation of rights under the Sixth, Eighth and Thirteenth Amendments.


 Plaintiff is presently in the Assessment and Program Preparation Unit (APPU) at Clinton Correctional Facility. Subsequent to his placement in the APPU at Clinton, the plaintiff was in protective custody at Green Haven Correctional Facility. He was placed in protective custody on February 1, 1981 after a fire was started in his cell. On February 13, 1981, he was given a Superintendent's Proceeding at Green Haven in accordance with the New York Code of Rules and Regulations § 253 (N.Y.C.R.R.) in which it was determined that there was substantial evidence to hold him in involuntary protective custody. He remained in protective custody at Green Haven until June 19, 1981 at which time he was transferred to the APPU at Clinton. Before being transferred from protective custody to the APPU, the plaintiff was not afforded any type of hearing and he has not been afforded any type of review to determine the necessity of his continuation in the APPU. The memorandum of law submitted by the Attorney General, without any detail, states only that the transfer into the APPU program was accomplished by the Office of Classification and Movement in Albany.

 Plaintiff contends that he was entitled to a hearing before being involuntarily placed in the APPU, and that defendants should be restrained "from forcing plaintiff to participate in 'APPU' programming; or placing him in limited program confinement for declining to participate in programs." He claims that his due process rights were violated by his involuntary placement in APPU and by his continued commitment in the program; rather than being released into the general population.

 Defendants, on the other hand, contend that plaintiff is not entitled to any due process protections in regard to his placement in APPU. They urge that the APPU is a diagnostic and treatment center as defined in the N.Y. Corrections Law § 2(9) and that admission into the program is governed by the N.Y.C.R.R. § 304.1(a) (1) which provides for automatic admissions into a diagnostic and treatment center, as distinguished from protective custody which requires a hearing. It is claimed that since plaintiff and all other inmates in the APPU would have no expectation from the prison regulations that transfers to the program will be accompanied by hearing, that therefore no liberty interest is involved. Additionally, defendants claim that APPU inmates enjoy most, if not all, of the privileges enjoyed by inmates in the general population at least to such extent that any due process requirements are met. Finally, the contention for the defendants is that the Supreme Court cases of Meachum v. Fano, 427 U.S. 215, 96 S. Ct. 2532, 49 L. Ed. 2d 451 (1976) and Montanye v. Haymes, 427 U.S. 236, 96 S. Ct. 2543, 49 L. Ed. 2d 466 (1976) are controlling.

 It is important to note that it is undisputed that the plaintiff did receive an appropriate due process hearing at Green Haven before being confined in involuntary protective custody and it was thereafter that he was sent to the APPU at Clinton. If plaintiff is entitled to any due process protections before being confined in APPU, as he contends, then these have been satisfied by the Superintendent's Proceeding which determined the need to separate him from the general population. See Ashley v. Coughlin, 81-CV-716 (N.D.N.Y.1981). However, plaintiff has not received any type of review as to his continued confinement in the program. It is this alleged violation of his due process rights that the court will consider herein.

 In order to understand the positions of the parties, it is necessary to set forth the pertinent statutes and regulations upon which they rely and upon which the APPU has been developed. The APPU as previously mentioned, has been deemed to be a "diagnostic and treatment center" as defined in N.Y. Corrections Law § 2(9) as:

[a] correctional facility operated for the purpose of providing intensive physical, mental and sociological diagnostic and treatment services including pre-parole diagnostic evaluation, . . . and scientific study of the social and mental aspects of the causes of crime.

 Under N.Y.C.R.R. § 304.1(a) (1), an inmate can be automatically admitted to confinement in a special housing unit used as a reception center, detention center or a diagnostic and treatment center. Therefore, the defendants contend that since admission to APPU is automatic no hearings are necessary in order to satisfy due process.

 Under 7 N.Y.C.R.R. 304.1(b), an inmate may be placed in protective custody ". . . in the case of inmates who are potential victims, or are witnesses likely to be intimidated or lack the strength to live in the general institutional community, or must, for good cause, be restricted from communication with the general inmate population." (Emphasis added). See also 7 N.Y.C.R.R. § 300.3(b) (3). An admission to protective custody can be made "where there is substantial evidence that such action is necessary", unless the inmate voluntarily admits himself. 7 N.Y.C.R.R. § 304.3(a). An inmate involuntarily admitted to protective custody, as well as inmates who are in protective custody and request reassignment to a different unit, must be given a hearing within fourteen (14) days of their ...

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