by Deputy Bushek's failure to comply with the following requirements set forth in 7 NYCRR § 251-5.1(b):
Where a delay [in completing a Tier III hearing] is authorized, the record of the hearing should reflect the reasons for any delay or adjournment, and an inmate should ordinarily be made aware of these reasons unless to do so would jeopardize institutional safety or correctional goals.
Plaintiff charges that in violation of these requirements, Deputy Bushek failed to include in the hearing record explanations for the extensions obtained on September 21, 1988 and September 28, 1988, and failed to advise Plaintiff of the reasons for obtaining those extensions. Even assuming these allegations to be true, Deputy Bushek is still entitled to summary judgment on the remaining claims against him because the regulation at issue does not create a protected liberty interest.
"While no State may 'deprive any person of life, liberty, or property, without due process of law,' it is well settled that only a limited range of interests fall within this provision." Hewitt v. Helms, 459 U.S. 460, 466, 74 L. Ed. 2d 675, 103 S. Ct. 864 (1983) (quoting U.S. Const. amend. XIV). As the Court in Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 109 S. Ct. 1904, 104 L. Ed. 2d 506 (1989), observed:
The types of interests that constitute "liberty" and "property" for Fourteenth Amendment purposes are not unlimited; the interest must rise to more than "an abstract need or desire," and must be based on more than "a unilateral hope." Rather, an individual claiming a protected interest must have a legitimate claim of entitlement to it. Protected liberty interests "may arise from two sources - the Due Process Clause itself and the laws of the States."
Id. at 1908 (citations omitted). Plaintiff contends that the provisions of 7 NYCRR § 251-5.1(b) allegedly violated by Deputy Bushek create a liberty interest which is protected by the Due Process Clause.
The mere adoption by the state of procedural guidelines, without more, is insufficient to give rise to a protected liberty interest. Only the repeated use of language of an unmistakably mandatory character, requiring that certain procedures "shall," "will," or "must" be employed, in connection with requiring specific substantive predicates, will demand a conclusion that the state has created a protected liberty interest. Matiyn, 841 F.2d at 34 (quoting Hewitt, 459 U.S. at 471-72).
For example, in Gittens, 891 F.2d at 39, the court found that the 7 NYCRR § 251-1.6(a), which provided that keeplock "shall" be imposed only upon the occurrence of certain substantive predicates, created in inmates a protected liberty interest in remaining free from keeplock. Similarly, in Matiyn, 841 F.2d at 36, the court ruled that where the regulations governing the placement of inmates in protective custody used language of an unmistakably mandatory character and specified substantive predicates upon which a protective admission may be based, a protected liberty interest was created.
The regulation at issue here, by contrast, does not use language of an unmistakably mandatory nature. It merely provides that the reasons for any delay "should" be reflected on the hearing record, and an inmate "should" be made aware of the reasons for the delay. Nor does the regulation provide specific substantive predicates which proscribe the conduct of prison officials. Thus, this regulation constitutes the mere adoption of procedural guidelines which, without more, does not create a protected liberty interest. See Hewitt, 459 U.S. at 471.
Accordingly, Deputy Bushek's non-compliance with the provision of 7 NYCRR § 251-5.1(b) at issue here did not infringe any protected liberty interest, and did not constitute a violation of Plaintiff's due process rights.
V. CLAIMS AGAINST LT. SANFORD
Plaintiff concedes the invalidity of his claims against Lt. Sanford. Pl. Response to Def. 3(g) Stmt. PP 84-101.
For the reasons set forth above, Defendants' motion for summary judgment is granted, and Plaintiff's motion for partial summary judgment is denied. This action is dismissed with prejudice.
IT IS SO ORDERED.
Dated: New York, New York
September 1, 1992
Robert P. Patterson, Jr.