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 is
minimal. Similarly, witnesses with exculpatory information
might be more likely to come forward and testify if they are
aware that the inmate might receive a substantial penalty.*fn5
Second, notice of the penalty is necessary prior to the
disciplinary hearing in order to allow the defendant to argue
the appropriateness of a given penalty within the range of
available sanctions. In the present case, for example, the
inmate may have specific reasons for why he believes
confinement in an SHU was unwarranted. If the Rule Book in the
inmate's possession indicates that such confinement is not one
of the penalties to which he might be subjected, he will not
raise those points. Hence giving notice of the potential
penalty to an inmate has significant value in ensuring the
fairness and accuracy of the disciplinary decision.
In light of the significant private interests of plaintiff at
stake, the lack of government interest in not providing it, and
the substantial procedural value that may have resulted, the
Court holds that failure to notify an inmate, after he has been
charged with misconduct, of the potential penalties that could
be imposed for that misconduct, is violative of the Due Process
Clause of the Fourteenth Amendment. Therefore plaintiff has
stated a claim upon which relief may be granted under § 1983.
3. Defendant's Immunity
Defendant's answer to the complaint asserts as an affirmative
defense that he is qualifiedly immune from liability, and if it
is clear that his immunity bars plaintiff's suit, judgment on
the pleadings pursuant to Rule 12(c) is appropriate.
State officials are immune from
suits for damages*fn6 alleging constitutional violations if it
was not clearly established at the time of their acts that the
interest asserted by the plaintiff was a protected one, or if
it was objectively reasonable for the officials to believe that
their acts did not violate clearly established statutory or
constitutional rights. Harlow v. Fitzgerald, 457 U.S. 800, 818,
102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982); Anderson v.
Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987).
See also Gittens v. Lefevre, 891 F.2d 38, 39, 42 (2d Cir.
1989); Robison v. Via, 821 F.2d 913, 920-21 (2d Cir. 1987). The
Court's holding above that an inmate is entitled to notice of
the range of disciplinary sanctions applicable to the
misconduct with which he is charged is apparently the first
such holding since the Supreme Court decided Wolff v.
McDonnell. Thus, the right plaintiff asserts to notice of the
potential penalties for a charged infraction was not clearly
established at the time defendant acted, and it was objectively
reasonable for the defendant to believe that he was not
violating plaintiff's rights by confining him to an SHU in
accordance with state law.
Furthermore, to the extent plaintiff is suing defendant for
damages in his official capacity, the suit is barred by the
Eleventh Amendment. Edelman v. Jordan, 415 U.S. 651, 94 S.Ct.
1347, 39 L.Ed.2d 662 (1974).
For the foregoing reasons, plaintiff's complaint fails to
state a cause of action upon which relief can be granted.
Accordingly, defendant's motion to dismiss the complaint is