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November 16, 1994

JULIO F. GIANO, Plaintiff, -vs- WALTER KELLY, Superintendent, Attica Correctional Facility; THOMAS COUGHLIN III, Commissioner, NYS Department of Correctional Facilities; HANS WALKER, 1st Deputy Superintendent, Attica Correctional Facility; ALBERT HALL, Deputy Sup't of Security, Attica Correctional Facility; J. KIHL, Hearing Officer, Attica Correctional Facility; R. BATHERICK, Lieutenant, Attica Correctional Facility; BOOKER, Correctional Officer, Attica Correctional Facility; W. STRANAHAN, Correctional Officer, Attica Correctional Facility; D. BATES, Correctional Officer, Attica Correctional Facility; R. REYES, Correctional Officer, Attica Correctional Facility, Defendants.

JOHN T. CURTIN, United States District Judge

The opinion of the court was delivered by: JOHN T. CURTIN

CURTIN, District Judge


 Plaintiff Julio Giano brings a 42 U.S.C. § 1983 action concerning his placement in administrative segregation at the Attica Correctional facility. In a prior order, the court dismissed the first six causes of action on collateral estoppel grounds. Item 71. Defendants Walter Kelly, et al., now seek summary judgment on the ninth and tenth causes of action in the plaintiff's amended complaint. Item 59. The ninth cause of action asserts that the defendants violated the plaintiff's Fourteenth Amendment equal protection rights by keeping him in the more restrictive conditions of administrative segregation than those enjoyed by the general prison population. The tenth cause of action asserts that the defendants violated the plaintiff's Fourteenth Amendment due process rights by failing to provide a meaningful periodic review of the plaintiff's status in administrative segregation. Both parties agree that the seventh and eighth causes of action will be decided at a later date. Item 98 at 1; Item 111 at 4-5.

 Plaintiff now seeks partial summary judgment on both the ninth and tenth causes of action. Defendants oppose plaintiff's motion and cross-move for summary judgment on both causes of action. It is the defendants' position that both causes of action were decided in the prior Article 78 C.P.L.R. proceeding at the state level and therefore cannot be heard by this court due to collateral estoppel. Plaintiff opposes defendants' cross motion on several grounds. First, plaintiff claims that the defendants have not met their burden in showing that these claims received adequate review at the state level. Second, plaintiff asserts that the state court did not address the adequacy of defendants' review process. Third, the fact that Giano was pro se at the state level in itself suggests an inadequate review. Finally, plaintiff claims that the introduction of new evidence in the form of a witness of the assault upon Giano was not considered by the State and warrants the preclusion of collateral estoppel.


 A detailed version of the facts surrounding this case can be found in the prior order of this court dated September 16, 1992. Item 71. The following is a brief overview of facts relevant to the court's consideration of the present motion. Plaintiff Julio Giano is a New York State prisoner. After his escape attempt from Sing-Sing, Giano was moved to the Shawangunk Correctional Facility. As punishment for the attempted escape, he was sentenced to five years in the Special Housing Unit. After twenty months and good behavior, Giano was released into the general prison population. Two months later, Giano was stabbed in the back by an unidentified inmate. Giano sustained serious injuries; and after recovering in a local hospital, he was returned to Shawangunk and kept in "Involuntary Protective Custody" ("IPC") for his protection. Shortly thereafter, on October 6, 1988, he was transferred to the Attica Correctional Facility, where he was placed in the Special Housing Unit ("SHU"). On October 9, 1988, Giano wrote a letter to defendant Superintendent Walter Kelly protesting his placement in "Administrative Segregation" because he was deprived of many of the privileges that are afforded to prisoners in the general population. Giano also wrote to defendants Kelly and Coughlin protesting this treatment. In response, on October 15, 1988, Giano was given a report made by defendant Bathrick at the request of defendant Hall, stating that he was to remain in the SHU. At the plaintiff's request, a hearing was held on October 20, 1988.

 The administrative hearing was run by defendant Hearing Officer Kihl. Defendants Coughlin and Kelly and certain inmates at the Shawangunk facility were not called as witnesses despite the request of Giano. Kihl ruled that their testimony was not relevant, and therefore not allowed. Walker, Bathrick, and Hall testified that there were two reasons behind their decision to keep Giano in Administrative Segregation. Item 46, Ex. F, Tr. at 31. First, Giano's history of escape attempts warranted keeping him out of the general population. Second, the specific information regarding the stabbing incident was unknown, and Giano was not willing to volunteer information. The ultimate decision to keep Giano in Administrative Segregation was based upon maintaining safety at the Attica facility. Item 71 at 5.

 After exhausting all of his administrative remedies, plaintiff filed an Article 78 C.P.L.R. action in state court on April 4, 1989. The respondents in the action were Commissioner Coughlin and Superintendent Kelly. The plaintiff set forth many of the same factual and constitutional allegations that were before this court in 1992. See Item 71. These allegations include failure to provide a hearing in a timely manner, failure to include witnesses in support of plaintiff, and improper placement in administrative segregation. Further, the State action challenged the constitutionality of Prison Directive No. 4933 as violative of the due process clause of the Fourteenth Amendment. Plaintiff also alleged unfair treatment and compared his treatment to the privileges of an inmate in the general population. The Appellate Division affirmed the decision of Hearing Officer Kihl.


 I. Collateral Estoppel

 Defendants move to dismiss both the ninth and tenth causes of action by summary judgment on collateral estoppel grounds, asserting that the issues of ultimate fact have already been tried and decided against Giano in state court and cannot be relitigated. A collateral estoppel claim is appropriately decided on summary judgment when, as here, "there is no dispute as to what occurred at the state-court hearing, or as to what questions were before the court, or as to what issues were necessarily decided." Golino v. City of New Haven, 950 F.2d 864, 868 (2d Cir. 1991). In determining whether or not an action is collaterally estopped, a New York court must first determine if the issues presented are identical to issues already presented in the prior proceedings. Next, a court must determine if the plaintiff had a "full and fair opportunity" to litigate the claim in those proceedings. Schwartz v. Public Admin. of Co. of Bronx, 24 N.Y.2d 65, 71, 298 N.Y.S.2d 955, 246 N.E.2d 725 (1969). At the present time, this court must again compare the state action and response to the causes of action in question.

 A. Equal Protection Claim

 Plaintiff's ninth cause of action asserts that the defendants violated the plaintiff's equal protection rights. By maintaining him in administrative segregation, plaintiff claims that he was unconstitutionally deprived of privileges afforded to prisoners in protective custody. The plaintiff argues that the officials have no rational basis for distinguishing between inmates placed in protective custody for their safety and inmates placed in administrative segregation. Further, plaintiff asserts that the party raising collateral estoppel has the burden to prove that the prior decision "squarely addressed and specifically decided the issue." Khandhar v. Elfenbein, 943 F.2d 244, 248 (2d Cir. 1991). Defendants assert that this claim has already been decided in the state court.

 Although the plaintiff did not label his claim in the state proceeding as an equal protection rights violation, his arguments clearly addressed the issue. In plaintiff's Brief For Petitioner-Appellant, claims of discrimination and unequal treatment are discussed in depth. Item 46, Ex. E at 22-36. The plaintiff's main argument addressed the similarity of his treatment to an inmate who is being punished for violating a regulation. Item 46 at 22-26. The discussion involving the disparity of treatment between plaintiff and inmates in the general population addresses the equal rights protection question.

 In both motions, the plaintiff asserts that defendants discriminated against him by limiting his right to visitors, phone calls, personal property, and commissary as punishment for failing to reveal information surrounding his stabbing. Giano claims that this cause of action does not meet the identity requirement of collateral estoppel, because a comparison of protective custody inmates to inmates in administrative segregation was never made. However, he argues identically that his rights were violated because he was treated differently from other inmates who had not broken any prison regulations. Unlike the authorities he cites, no different test or standard need be applied here to decide his previously litigated issue. Jim Beam Brands Co. v. Beamish & Crawford, Ltd., 937 F.2d 729 (2d Cir. 1991); Cullen v. Margiotta, 811 F.2d 698 (2d Cir. 1987).

 Plaintiff next asserts that the fact that the state claim was litigated pro se is a crucial factor in determining the applicability of collateral estoppel. Item 115 at 9. Plaintiffs who proceed pro se are entitled to have their arguments held to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972). Giano asserts, however, that since the State and some of the federal action were handled pro se, the court should disallow the application of collateral estoppel. West v. Ruff, 961 F.2d 1064 (2d Cir. 1992); Clark v. Department of Correctional Services, 564 F. Supp. 787 (S.D.N.Y. 1983).

 Unlike the plaintiffs in his cited authorities, Giano is an experienced pro se litigator. See item 71 at 12. His papers were fully developed and complete. Moreover, he had a full and fair opportunity to raise his arguments in favor of the equal rights protection claim in the state forum. "A prior state proceeding, including an Article 78 proceeding, will preclude relitigation of a civil rights claim in a federal court if the state proceeding reached the federal constitutional issues involved." Powell v. Ward, 643 F.2d 924, 934 (2d Cir. 1980) (citations omitted). An Article 78 proceeding will not automatically preclude litigation even when the same factual circumstances are presented (see, e.g., Davidson v. Capuano, 792 F.2d 275 (2d Cir. 1986)), because plaintiffs who prevail can seek damages unavailable in the state forum. In the instant case, however, Giano was unsuccessful in arguing that his constitutional rights were violated and in attempts to relitigate the identical issue.

 As a result, the plaintiff is collaterally estopped from raising the issue in this court. The defendants' request for summary judgment on ...

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