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Gittens v. Superintendent Eugene S. Lefevre

decided: November 29, 1989.

DARIUS GITTENS, PLAINTIFF-APPELLANT,
v.
SUPERINTENDENT EUGENE S. LEFEVRE, REVIEW OFFICER LT. KAVANAUGH, CORRECTION OFFICER J. GILLEN, SERGEANT GOODRICH, DEFENDANTS-APPELLEES



Appeal from judgment entered in the United States District Court for the Northern District of New York (McCurn, Ch.J.) dismissing, on the basis of qualified immunity, inmate's well-founded complaint that the absence of any opportunity to challenge his "keeplock" status constituted a denial of due process. Affirmed as modified.

Pratt, Miner, and Altimari, Circuit Judges.

This is an appeal from a judgment entered in the United States District Court for the Northern District of New York (McCurn, Ch.J.) dismissing plaintiff's complaint pursuant to Fed.R.Civ.P. 12(b)(6) for "failure to state a claim upon which relief can be granted." Plaintiff, an inmate at the Clinton Correctional Facility, alleged that defendants confined him to his cell and denied him any opportunity to make a statement challenging his confinement until a disciplinary hearing seven days later. The district court adopted the report -- recommendation of Magistrate Gustave J. DiBianco finding that plaintiff had pleaded a prima facie due process violation. The district court held, however, in accordance with the magistrate's recommendation, that defendants were entitled to qualified immunity and dismissed the complaint. The court determined that it was objectively reasonable for defendants to believe that New York prison regulations, providing for a disciplinary hearing within seven days, satisfied the constitutional requirement that an inmate in administrative confinement be afforded an opportunity to be heard within a reasonable time. See Hewitt v. Helms, 459 U.S. 460, 74 L. Ed. 2d 675, 103 S. Ct. 864 (1983).

On appeal, Gittens contends the law was clear at the time of his confinement that defendants could not deny him an opportunity to be heard, and therefore that defendants are not entitled to qualified immunity. We hold that the failure of New York regulations to provide inmates an adequate opportunity to be heard within a reasonable time of their administrative confinement violates the due process requirements enunciated in Helms, but that defendants acted reasonably in reliance on the New York regulations. For the reasons that follow, we affirm as modified.

BACKGROUND

Plaintiff-appellant Darius Gittens commenced this action pro se while an inmate at the Clinton Correctional Facility, alleging that his federal constitutional and state law rights were violated when he was placed in "keeplock" for seven days pending a disciplinary hearing on charges that he violated a prison rule. "Keeplock" is a form of administrative segregation in which the inmate is confined to his cell, deprived of participation in normal prison routine, and denied contact with other inmates. See N.Y. Comp.Codes R. & Regs. tit. 7, § 251-1.6 (1988) [hereinafter N.Y.C.R.R.].

Gittens alleged in his complaint that he took scraps of wood and papers from a trash can in the prison library, with the permission and under the supervision of a correction officer named LaDuke, on May 1, 1986. LaDuke initialed some of the scraps, which Gittens planned to use to start a fire in an outdoor cooking stove. Before Gittens started the fire, however, defendant Correction Officer J. Gillen examined and confiscated some of the papers. When Gittens explained that the papers and wood had come from the trash, he was allowed to burn the remaining scraps.

The next morning Gittens was served with a copy of a misbehavior report, filed by Officer Gillen, accusing him of possessing "transfer papers of a [sic] incoming and out going draft of inmates, thus in violation of Rule 110.21," 7 N.Y.C.R.R. § 270.1[b][11][iii]. Upon receipt of the misbehavior report, Gittens was placed in keeplock for seven days pending a disciplinary hearing. Each day of his confinement, Gittens complained to correction officers and attempted to contact the prison Superintendent to effect his release. Each time, Gittens was told that the prison's Review Officer continued to approve his confinement and that he would be released only after a disciplinary hearing on the underlying charge.

At a disciplinary hearing held on May 8, Gittens testified that Officer Gillen "never even attempted to see if his possession of the papers was authorized." The prison's Hearing Officer dismissed the charges without hearing Gittens' two witnesses, stating, "if it is a breaking of the rules, it's more of a border-line type of how you interpret the rules." Officer Gillen, he said, "should have just taken [the papers] and [thrown] them away." The Hearing Officer also stated that, in his personal view, Gittens' confinement was unjustified because he posed no threat to the safety or security of the facility.

Gittens commenced this action pursuant to 42 U.S.C. §§ 1983, 1985-1986 (1982), against defendants in their official and individual capacities, seeking declaratory and compensatory relief for violations of his rights under the first, fifth, and fourteenth amendments. The district court adopted the findings and recommendation of the magistrate, who found that the lack of an opportunity to make a statement to the officer who continued to approve keeplock, if proven, would constitute a violation of Gittens' due process rights. However, the magistrate also found that defendants were entitled to qualified immunity because, although Helms had established the due process standard for administrative confinement prior to the acts alleged, reasonable correction officers would have believed that the New York regulations complied with the Helms standard. That finding was adopted by the district court.

Discussion

I. Due Process

State prison officials have "broad administrative and discretionary authority" to remove an inmate from the general prison population for the purpose of ensuring the safety and security of the prison, or pending an investigation into an alleged disciplinary violation. Helms, 459 U.S. at 467. Such confinement is considered administrative and is not restricted by the fourteenth amendment, unless state law has created a liberty interest in remaining free from the restraints imposed. Id. at 469. However, when state law limits the imposition of administrative confinement such as keeplock, by using mandatory language and by requiring specific substantive predicates, a liberty interest is created which may not be deprived without due process. Id. at 471-72.

New York law has created such a liberty interest by using mandatory language and requiring specific substantive predicates for keeplock. Keeplock "shall" be imposed only when "an officer has reasonable grounds to believe that an inmate . . . represents an immediate threat to the safety, security or order of the facility or [an] immediate danger to other persons or to property." 7 N.Y.C.R.R. § 251-1.6(a). An immediate threat exists "whenever an officer reasonably believes that a facility rule has been violated." Bowe v. Smith, 119 Misc. 2d 453, 455, 465 N.Y.S.2d 391, 393 (Sup.Ct.Wyo.Co. 1983). Having limited the imposition of keeplock to situations in which an officer reasonably believes a facility rule has been violated, New York State must provide a minimum of due process commensurate with the government function involved and the private interest affected. See Helms, 459 U.S. at 476; see also Bolden v. Alston, 810 F.2d 353, 357 (2d Cir. 1987), cert. denied, 484 U.S. 896, 108 S. Ct. 229, 98 L. Ed. 2d 188 (1987).

An inmate confined to administrative keeplock must be afforded "some notice of the charges against him and an opportunity to present his views to the prison official charged with deciding whether to transfer him to administrative segregation." Helms, 459 U.S. at 476; see Patterson v. Coughlin, 761 F.2d 886, 890 (2d Cir. 1985), cert. denied, 474 U.S. 1100, 88 L. Ed. 2d 916, 106 S. Ct. 879 (1986). This due process requirement may be satisfied by "an informal, nonadversary review of the information supporting [the inmate's] administrative confinement, including whatever statement [the inmate] ...


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