and the failure of Officer Orszulak to follow the rules for maintaining a chain of custody for the items confiscated, as required by D.O.C.S. Directive No. 4910, constitute due process violations.
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. Gittens v. LeFevre, 891 F.2d 38, 40 (2d Cir. 1989). Thus, an inmate confined to administrative keeplock pending a disciplinary hearing 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." Hewitt v. Helms, supra, 459 U.S. at 476. The notice and opportunity to be heard must be afforded within a reasonable time following the imposition of keeplock or other administrative confinement. Gittens, supra, 891 F.2d at 41. What is considered a "reasonable time" will depend on the particular situation being examined. Russell v. Coughlin, 910 F.2d 75, 78 (2d Cir. 1990).
In Gittens, the plaintiff was placed in keeplock for seven days pending his disciplinary hearing, following receipt of a misbehavior report accusing him of unauthorized possession of other prisoners' transfer papers, in violation of prison rules. On each day of his prehearing confinement, the plaintiff complained to corrections officers about his keeplock status and attempted to contact the prison superintendent, arguing that he had been given permission to take the papers in question from a trash can in the prison library for use in starting a fire in an outdoor cooking stove. Each time he complained, he was informed that the review officer had continued to approve his confinement and that he would be released only after the disciplinary hearing on the underlying charge. The Second Circuit found that, under the circumstances, the prison's refusal to allow the plaintiff to make a written or oral statement until the disciplinary hearing denied him "the opportunity to avoid an improvident or wrongful administrative confinement . . .," Gittens, supra, 891 F.2d at 41, and that the failure of state regulations to provide "an adequate procedure for inmates to challenge keeplock until adjudication of the underlying disciplinary charge violates the minimal due process requirements described in Helms." Id. at 42.
Presumably in response to the Gittens decision, revised regulations were filed on January 13, 1992, effective February 19, 1992, requiring that all misbehavior reports contain language advising inmates subject to restriction pending a disciplinary hearing of the right to make a written statement prior to the hearing regarding the need for continued prehearing confinement. See 7 N.Y.C.R.R. § 251-3.1(d)(3), note 3 supra. Accordingly, the same due process concerns presented to the court in Gittens pertaining to the adequacy of the state's procedures for providing inmates the opportunity to be heard on their prehearing confinement "at a meaningful time and in a meaningful manner . . .," Armstrong v. Manzo, 380 U.S. 545, 552, 14 L. Ed. 2d 62, 85 S. Ct. 1187 (1965), quoted in Mathews v. Eldridge, 424 U.S. 319, 333, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976), are not presented in this case. On June 22, 1992, at the time Officer Clark served plaintiff with a copy of the misbehavior report, the state's prison regulations provided the mechanism which the Second Circuit, in Gittens, found lacking.
Furthermore, plaintiff has not alleged here, as the plaintiff in Gittens did, that he requested the opportunity to make a statement on his confinement prior to the disciplinary hearing but was refused. Neither has plaintiff alleged that he did not receive notice of his right to challenge his prehearing confinement. Cf. Randall v. Tokarz, No. 90 Civ. 7989, 1994 WL 174031 (S.D.N.Y. May 5, 1994); McMillan v. Healey, 739 F. Supp. 153, 155 (S.D.N.Y. 1990). The record reflects that plaintiff obtained the assistance of an inmate counselor on June 25, 1992, three days before the hearing. Additionally, both Lt. Grant and Lt. LeBaron have filed affidavits attesting to their belief that plaintiff was to have received a separate sheet advising him of his right to make a statement on prehearing confinement (Item 18). Despite these indications, there is nothing in the papers submitted to the court to indicate that plaintiff took any steps to assert his right to challenge his confinement prior to the Tier III disciplinary hearing. Instead, the record suggests that plaintiff waited until the hearing commenced to complain about the lack of notice in the misbehavior report. Yet, when presented with the opportunity at the hearing to question Officer Orszulak about the report, plaintiff failed or declined to do so.
All that is alleged in the complaint is that the failure of the misbehavior report to contain the language required by 7 N.Y.C.R.R. § 251-3.1(d)(3) and Directive 4910 is, in itself, a violation of constitutional dimensions. However, a due process claim premised upon a prison official's failure to follow state procedural rules or regulations, standing alone, is not a sufficient basis for a § 1983 claim. Cofone v. Manson, 594 F.2d 934, 938 (2d Cir. 1979); James v. Artuz, No. 93 Civ. 2056, 1994 WL 174005 (S.D.N.Y. May 4, 1994); Johnson v. Coughlin, No. 90 Civ. 1731, 1992 WL 6227 (S.D.N.Y. 1992); Afrika v. Selsky, 750 F. Supp. 595, 602 (S.D.N.Y. 1990); Smallwood-El v. Coughlin, 589 F. Supp. 692, 699 (S.D.N.Y. 1984); Franciotti v. Reynolds, 550 F. Supp. 146, 147 (S.D.N.Y. 1982).
Moreover, the record before the court clearly shows that, upon discovering the presence of a concealed razor blade among plaintiff's belongings, Officer Orszulak had "reasonable grounds to believe that [plaintiff] should be confined to his cell . . . because he represented an immediate threat to the safety, security or order of the facility or an immediate danger to other persons or to property," and took "reasonable and appropriate steps to so confine [plaintiff]." 7 N.Y.C.R.R. § 251-1.6(a). Thus, to the extent that plaintiff's complaint alleges that his administrative confinement pending hearing violated "substantive due process," see Lowrance v. Achtyl, 20 F.3d 529, 1994 WL 106481 (S.D.N.Y. March 29, 1994), that claim must fail. Id. at *6-*8.
As provided in Rule 56(e):
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.
Fed.R.Civ.P. 56(e). Thus, once the moving party has met its burden of demonstrating the absence of a genuine issue of fact, the burden shifts to the nonmoving party to "present affirmative evidence . . . from which a jury might return a verdict in its favor." Anderson v. Liberty Lobby, supra, 477 U.S. at 257.
Here, defendants have demonstrated that plaintiff's due process claims rest entirely on the grounds that defendants' conduct violated state procedural regulations, and not on the grounds that failure to give him notice of the right to challenge prehearing confinement or failure to maintain a chain of custody were themselves violative of federal constitutional standards of due process. See James v. Artuz, supra, 1994 WL 174005, at *6. In the absence of any material factual dispute, summary judgment is appropriate in favor of defendant on plaintiff's due process claim.
Defendants also contend that any due process violations that may have occurred by means of Officer Orszulak's failure to include the language required by 7 N.Y.C.R.R. § 251-3.1(d)(3), or to follow the prison's chain of custody procedures as set forth in Directive 4910, were cured by defendant Selsky's reversal and expungement of the hearing disposition on appeal. See, e.g., Russell v. Scully, supra, 15 F.3d at 222 (failure to conduct hearing within seven days of administrative segregation, or to decide appeal within sixty days of hearing determination, did not result in due process violation since reversal on appeal cured any procedural defects)(citing with approval Williams v. Tavormina, No. 89-1247 T, 1992 WL 487335 (W.D.N.Y. 1992)(Telesca, C.J.)(due process not violated when appeal corrected procedural errors). However, the Second Circuit has recently held that reversal of a disciplinary hearing decision on administrative appeal does not cure the wrongful deprivation of a liberty interest resulting from a due process violation at a prisoner's disciplinary proceeding. Walker v. Bates, 23 F.3d 652, No. 93-2107, 1994 WL 161050 (2d Cir. April 29, 1994); Mays v. Mahoney, 23 F.3d 660, No. 93-2728, 1994 WL 164732 (2d Cir. April 29, 1994).
Finally, defendants contend that even if plaintiff has met his burden of establishing a genuine issue of material fact as to whether his due process rights were violated, they are entitled to qualified immunity based on their official actions in processing the misbehavior report and conducting the disciplinary hearing and appeal. Because I find that plaintiff has not met his summary judgment burden, I do not find it necessary to address defendants' qualified immunity defense.
C. Delay in Determination of Appeal.
Plaintiff also claims that Defendant Selsky's failure to decide his appeal until the day his keeplock status expired denied him due process and equal protection, and constituted cruel and unusual punishment. However, as noted in Russell v. Scully, supra, the federal constitution does not require New York State to "give [inmates] the right to avoid administrative confinement pending . . . appeal." 15 F.3d at 222 (citing Hewitt v. Helms, supra, 459 U.S. at 467).
Accordingly, I find that there are no genuine issues of material fact as to whether the evidence was sufficient to sustain the hearing disposition, or whether defendants' conduct violated the due process clause or any other constitutional or statutory provision sufficient to sustain a cause of action under § 1983. Defendants are therefore entitled to entry of judgment dismissing the complaint as a matter of law.
For the reasons set forth herein, defendants' motion for summary judgment (Item 18) is granted dismissing plaintiff's complaint in its entirety.
DATED: Buffalo, NY
June 7, 1994
CAROL E. HECKMAN
United States Magistrate Judge