Appeal from a Judgment of the District Court for the Western District of New York (Howard G. Munson, Chief Judge) Dismissing, After a Nench Trial, Plaintiff's Complaint Challenging his Transfer from General Population of the Auburn Correctional Facility to the Reclassification Unit of Attica Correctional Facility.
Timbers, Newman, and Pratt, Circuit Judges.
JON O. NEWMAN, Circuit Judge:
Walter Sher appeals from a judgment of the District Court for the Western District of New York (Howard G. Munson, Chief Judge) dismissing, after a bench trial, his complaint challenging his transfer from the general population of the Auburn Correctional Facility to the Reclassification Unit of the Attica Correctional Facility. Sher brought suit for damages and other relief under 42 U.S.C. § 1983 against the New York Commissioner of Correctional Services and several officers of the Auburn facility. We affirm.
The record discloses the following facts underlying Sher's transfer from Auburn to Attica and his confinement there in the Reclassification Unit. An investigation into the expenditures of inmates' funds at Auburn uncovered a scheme to funnel funds illegally to Sher. About $2,000 worth of checks drawn by 23 inmates during a three-month period in 1980 payable to "Hanigan's Legal Services," purportedly for the acquisition of legal materials, were ultimately endorsed by Sher's wife. No legal materials were received by the inmates. The proceeds from the checks to "Hanigan's Legal Services" were delivered to Sher at Auburn by visitors. As a result of the investigation into the inmate scam, prison officials concluded that Sher's transfer to another prison would be in the best interests of both Sher and the correctional system.
Once transfer to Attica was decided, a further decision was made to assign Sher to the Reclassification Unit at Attica rather than to the general prison population.This unit is one type of Special Housing Unit, a category of cells used for confinement for a variety of administrate as well as disciplinary purposes. 7 N.Y.C.R.R. §§ 300,2(b), 300.3(b) (1982). Sher maintains that the restrictive conditions of confinement imposed on reclassification inmates include: (1) denial of job assignments, vocational and educational programs, and library facilities, (2) confinement to cells for 22-23 hours per day, compared to 14-16 hours for general population inmates, and (3) limited visitation privileges. He contends that the conditions of confinement in the Reclassification Unit closely resemble those imposed on disciplined inmates.
The State contends that the main purpose of the Reclassification Unit is to benefit the inmate by identifying the lowest level of security required for his confinement. During the reclassification process, which lasts from three to eight weeks, restrictions are imposed upon the inmate allegedly to permit individualized evaluation of his behavior and attitude on which to base a reclassification decision. The corrections official in charge of classification, who ordered Sher's transfer to the Reclassification Unit at Attica, averred that confinement in the unit was ordered to evaluate Sher's adjustment to prison life, to uncover the source of his difficulties, and to determine an appropriate classification, facility, and program.
Sher contends that he was transferred to Attica and confined in the Reclassification Unit there as a disciplinary sanction for his role in the inmate scam, an activity in which he denies any involvement and for which no finding of wrongdoing on his part has been made. He further challenges the bona fides of the State's administrative reasons for the transfer and restrictive confinement by contending that an outstanding federal detainer and his designation as a central monitoring case precluded his reclassification to any status less than maximum security confinement. However, the prison officials deny that Sher was ineligible for reclassification, and, in fact, he was recommended for transfer to a reduced security facility. That recommendation was not carried out because, during the pendency of this litigation, Chief Judge Munson ordered Sher returned to Auburn after he had spent seven weeks in Attica.*fn1
Chief Judge Munson initially granted partial summary judgment for the defendants on Sher's primary claim that his transfer and restrictive confinement were imposed without procedural due process. On Sher's motion for reconsideration, however, the District Judge concluded that our recent decision in McCann v. Coughlin, 698 F.2d 112 (2d Cir. 1983), "probably" applied to Sher's case. In McCann we ruled that a prisoner facing sanctions for "disciplinary violations," id. at 119, was entitled to procedural due process when the possible sanctions include "confinement in a Special Housing Unit" or confinement "to his quarters or elsewhere for at least fourteen days." Id. at 121. Chief Judge Munson further ruled that Sher's transfer and confinement in the Reclassification Unit had been accomplished in violation of his right to procedural due process, but that, because of the unsettled state of the law, defendants had not deprived Sher of a clearly establlished right and were therefore entitled to judgment based on a qualified immunity defense of good faith. At a subsequent bench trial, the District Court rejected for lack of proof Sher's additional claims that the transfer had denied him access to counsel and that there existed an unofficial policy to pay prisoners their pre-transfer wages during the reclassification process.
On appeal, Sher contends that it was error to deny his claim for damages for the alleged denial of procedural due process in connection with his transfer and restrictive confinement and his claim for continuation of his pre-transfer wages.
The wage claim is without merit in view of the District Court's finding that Sher did not prove the existence of a policy to pay pre-transfer wages to inmates during reclassification. That finding is not clearly erroneous. The principal issue on appeal concerns the claim for damages for the allegedly unlawful transfer and restrictive confinement. We need not consider the correctness of the ruling concerning a defense of qualified immunity since we conclude that the transfer and restrictive confinement without procedural due process protection did not deny Sher any constitutional right.
Sher's transfer from Auburn to Attica was not constitutionally required to be preceded by due process procedures because 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, 49 L. Ed. 2d 466, 96 S. Ct. 2543 (1976). The Supreme Court made clear in Haymes that a transfer between New York prisons does not deny a liberty interest no matter what "part an inmate's behavior may play in a decision to transfer." Id. at 243. Sher's contention that his transfer was not really ordered for the administrative purpose of ...