Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.


May 21, 1990


The opinion of the court was delivered by: Robert P. Patterson, Jr., District Judge.


George McMillan, plaintiff pro se, is an inmate confined to Fishkill Correctional Facility. He brings this action pursuant to 42 U.S.C. § 1983, claiming that defendant Healey, a corrections officer at Fishkill, violated his right to due process under the Fourteenth Amendment to the United States Constitution. Defendant moves to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6), 12(b)(1) and 12(h), or for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c).

The factual allegations of Plaintiff's complaint are as follows:

    On October 31, 1988, a misbehavior report was
  written against the plaintiff, the contents of
  said report was reviewed by the defendant, in a
  hearing conducted on November 3, 1988.
    The plaintiff was found guilty of the charges in
  the written report, and was sentenced to 10 days
  confinement in the Special Housing Unit. The
  defendant knew or should have known, that he did
  not have the authority to sentence the plaintiff
  to the Special Housing Unit, because the degree of
  the misbehavior report did not encompass such
  penalty, which such penalty could only have been
  imposed by an official of higher authority than
  the defendant, after conducting a specifically
  indicated hearing necessary for properly imposing
  the penalty to a Special Housing Unit.

Defendant, reading the complaint as alleging that defendant was without statutory authority to punish plaintiff by putting him in a Special Housing Unit ("SHU"), moved to dismiss or for judgment on the pleadings, arguing, inter alia, that New York law is clear that a Tier II hearing officer conducting a Tier II disciplinary hearing does have such authority.*fn1 In his opposition to defendant's motion, plaintiff implicitly acknowledges that defendant did have the statutory authority to place plaintiff in an SHU, but argues that his due process rights were violated because defendant violated New York Correction Law § 138,*fn2 which prohibits the imposition of punishment for violation of a rule or regulation of which the inmate has not been provided a copy. In his brief, plaintiff claims that the Standards of Inmate Behavior ("Rule Book") distributed to him pursuant to Correction Law § 138 implied that confinement to an SHU was not among the possible penalties for a Tier II violation.*fn3 Thus, plaintiff claims that, since he was not made aware that confinement to an SHU was possible, under § 138(5) defendant could not so discipline him, and was without power to do so, as alleged in the complaint.

However, establishing a violation of a state procedural law does not by itself establish a violation of the Due Process Clause of the Constitution. "Although local rules may offer greater procedural protection than the Constitution requires, such rules do not act `as a ratchet tightening the Due Process Clause. Any such state procedural requirements remain only that, not independently cognizable in a Section 1983 lawsuit.'" Panozzo v. Rhoads, 711 F. Supp. 941, 944 (N.D.Ill. 1989), quoting Jones v. Board of Education, 651 F. Supp. 760, 766 (N.D.Ill. 1986). See also Cleveland Board of Education v. Loudermill, 470 U.S. 532, 541, 105 S.Ct. 1487, 1492-93, 84 L.Ed.2d 494 (1985) ("once it is determined that the Due Process Clause applies, `the question remains what process is due.' [citation omitted]. The answer to that question is not to be found in the [state] statute."). Thus, while defendant may have been deprived of a protected liberty interest by being placed involuntarily in the SHU, see Matiyn v. Henderson, 841 F.2d 31, 36 (2d Cir.), cert. denied, 487 U.S. 1220, 108 S.Ct. 2876, 101 L.Ed.2d 911 (1988); Sher v. Coughlin, 739 F.2d 77 (2d Cir. 1984), this Court's role under § 1983 is only to enforce the procedural protections guaranteed by federal constitutional law. Failure to follow state procedures does not by itself deprive an inmate of the process due him under the Fourteenth Amendment, and therefore does not alone create a federal claim. Accordingly, the issue to be decided in the case at hand is whether the Due Process Clause proscribes punishment of inmates for misconduct unless they have previously been put on notice of the range of disciplinary sanctions that can be imposed on them.

The Court discerns two separate issues here: (1) whether an inmate who was not notified of the range of disciplinary sanctions penalties before he engaged in misconduct may be disciplined, and (2), if not, whether an inmate who was not so notified at the time he was notified of the charges against him may be disciplined for the charged misconduct. The Court concludes that notice of the penalty prior to being charged with any misconduct is not required, but due process does require that, when the inmate is notified of the charges against him, he must also be notified of the range of sanctions that may be imposed if discipline is warranted.

1. Notice Prior to Infraction

Plaintiff has cited no authority for the proposition that the Due Process Clause prohibits the imposition of punishment upon an inmate unless the inmate was made aware of the potential penalties prior to the charged misconduct. The Court has found two cases that so hold, Sinclair v. Henderson, 331 F. Supp. 1123, 1129 (E.D.La. 1971) and Gates v. Collier, 349 F. Supp. 881 (N.D.Miss. 1972), aff'd, 489 F.2d 298 (5th Cir. 1973),*fn4 but they are of limited persuasive value because both were decided before the Supreme Court, in Wolff v. McDonnell, 418 U.S. 539, 567, 94 S.Ct. 2963, 2980, 41 L.Ed.2d 935 (1974), laid down the minimum requirements of due process in the inmate disciplinary context. In Wolff, the Court held that an inmate subject to disciplinary action must be given (1) advance written notice of the charges against him, (2) a written statement by the factfinders of the evidence relied on and the reasons for the disciplinary action taken, and (3) the opportunity to present evidence in his defense if permitting him to do so will not jeopardize institutional safety or correctional goals. The Court has found no cases subsequent to Wolff holding that due process requires notice of the range of disciplinary sanctions prior to commission of the infraction.

Furthermore, application of the appropriate standard convinces the Court that such notice is not required. To determine the procedural protections required by the Due Process Clause, the Court must weigh the private interests at stake in a governmental decision, the governmental interests involved, and the value of the procedural requirements. Washington v. Harper, ___ U.S. ___, 110 S.Ct. 1028, 1040-41, 108 L.Ed.2d 178 (1990); Hewitt v. Helms, 459 U.S. 460, 473, 103 S.Ct. 864, 872, 74 L.Ed.2d 675 (1983). Weighing these factors in the present case, the Court holds that, since plaintiff was aware that the misconduct charged was subject to disciplinary sanction, notice of the exact range of those sanctions prior to commission of the infraction is not required in these circumstances.

The Court recognizes that plaintiff's private interest at stake here is not insubstantial. It involves solitary confinement and the stigma of wrongdoing that attaches to disciplinary confinement. Cf. Hewitt v. Helms, 459 U.S. at 473, 103 S.Ct. at 872. Also, there is little government interest, other than avoidance of expense, in not notifying inmates of the range of sanctions available for misconduct. Nevertheless, it is difficult to see any value in the procedural requirement plaintiff suggests. In this case, notice of the specific penalty that could be imposed if an infraction is committed would do very little to further the interests protected by due process: fairness and accuracy in government decision-making. See Wolff, 418 U.S. at 558, 94 S.Ct. at 2976 ("The touchstone of due process is protection of the individual against arbitrary action of the government[.]"). While ensuring that inmates know that the exact range of disciplinary sanctions which may attach to violation of prison rules and regulations may, in fact, further the goal of maintaining order in the prison setting, it would not appear to affect the fairness or accuracy of the government's disciplinary decision. Therefore, the Due Process Clause did not prohibit defendant from taking disciplinary action against plaintiff due to the fact that the Rule Book did not notify plaintiff of the potential penalty of confinement to an SHU.

2. Notice Subsequent to Being Charged

The above analysis changes significantly after the inmate has been charged with misconduct. His private interest, of course, remains the same. The government's interest in not informing the inmate of the potential penalty, minimal to begin with, virtually disappears, since significant expense is not involved. At this stage, however, the procedural value of notice of the range of disciplinary sanctions is substantially greater. First, the nature and severity of the potential penalty may affect the extent to which the inmate will defend himself from the charges. Quite obviously, if the potential penalties are great, the inmate may choose to marshal more evidence for his defense than if the potential penalty ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.