infraction which satisfied the Wolff standards. Soto v. Walker, 44 F.3d at slip opn. at 1124 n.3. Accordingly, whatever rights plaintiff may have had beyond Helms, Green v. Bauvi, F.3d at slip opn. at 1483; Wright v. Smith, 21 F.3d at 500, were satisfied by the more formal hearing held on March 7th, in which plaintiff admitted possessing contraband. Furthermore, whether or not plaintiff's admitted possession of contraband, in view of his earlier escape history, would have justified punitive detention, it is clear that plaintiff's case was reviewed periodically as Helms requires. Plaintiff does not contend otherwise. That a genuine Helms periodic review followed the March 1st incident is underscored by the gradual restoration to plaintiff of his privileges until new infractions were committed. These infractions resulted in hearings similar to those held on March 7th, and the findings (not challenged for accuracy by plaintiff) manifestly justified continued administrative segregation. Wright v. Smith, does not say how many formal hearings in regard to extended confinement are necessary over time, but it is clear that plaintiff received many. Over time, the necessity for administrative confinement never began "to pale." Covino v. Vermont Department of Corrections, 933 F.2d at 130.
Plaintiff also contends, in various points of his papers, that he did not learn of Maier's investigation of his escape plans until May of 1991, when defendants answered an Article 78 proceeding he brought in state Supreme Court. The failure to inform him of Maier's special reports, plaintiff now contends, rendered the March 7th hearing defective. Plaintiff reasons that the hearing officer based his decision on Maier's reports, not in plaintiff's admission at the hearing that he possessed contraband. Plaintiff offers no proof that the hearing officer based his decision on Maier's reports, but then defendants have submitted nothing on the issue whether indeed the hearing officer was informed of them. In view of the case law described below, however, the court concludes that this factual issue is not a genuine or material one precluding entry of summary judgment. It is assumed that the hearing officer, Krenzer, considered Maier's special reports together with the contraband infraction as a basis to impose the "Continued Administrative Segregation" order at the conclusion of the hearing.
The March 7th hearing was disciplinary in nature, until the remedy of continued administrative segregation was ordered. It has been suggested in the disciplinary hearing context that the requirement in Wolff of "a modicum of evidence to support a decision" of the disciplinary hearing officer imposing discipline implies that the hearing officer "should independently assess an informant's reliability if . . . [he] relied upon that [confidential] information in a disciplinary hearing." Richardson v. Selsky, 5 F.3d 616, 622 (2d Cir. 1993). Although no Second Circuit case provides definitive guidance on how that independent assessment should occur, Russell v. Scully, 15 F.3d at 223 ("there are presently no Supreme Court nor Second Circuit cases that clearly establish the procedures required to make an independent assessment of a [confidential] witness's credibility"), the Second Circuit has stated that "there must be some evidence in the record of the informant's reliability," Richardson v. Selsky, 5 F.3d at 624, and that "one means of satisfying this standard is for prison officials contemporaneously and independently to assess the credibility of the informants, and to create and preserve a record of that assessment . . . for administrative or judicial review to insure that the conclusion reached by the prison disciplinary officials satisfies due process." Id. 5 F.3d at 624. See also, Rasheed-Bey v. Duckworth, 969 F.2d 357, 361-62 (7th Cir. 1992). But these observations in Richardson are not yet the law of this circuit, because in Russell v. Scully, 15 F.3d 219 (2d Cir. 1994) the court was careful to point out that "we do not regard that issue foreclosed in this circuit." Id. 15 F.3d at 223 (opn. on rehrg.).
No case called to the court's attention extends this rule to the administrative confinement context or even implies that the informal review process envisioned by Hewitt v. Helms contemplates an independent assessment of prison informant's credibility before official action justifying removal to administrative segregation, either in the initial informal review stage or during the subsequent periodic reviews required by Helms, is completed. Indeed, two cases have implied that this rule would not be applicable to an inmate validly confined to administrative segregation, at least if that confinement did not impair a liberty interest. Richardson v. Selsky, 5 F.3d at 622; Russell v. Scully, 15 F.3d at 221 (opn. before rehrg.). This case is somewhat different, because plaintiff's confinement to administrative segregation on March 1st, though valid, quite clearly deprived him of a liberty interest in remaining within the general population. See above. But this case is not a case to announce the extension of a concept, formulated by other circuits in the Wolff context, to the Helms context which has not as yet been established by this circuit in the Wolff context. Russell v. Scully, 15 F.3d at 223.
There are good reasons to doubt the efficacy of such a rule within the Helms formula. Helms did not require that the decision to remove an inmate to administrative segregation be supported by a "modicum" or other level of evidence as did Wolff. That Wolff "modicum of evidence" requirement was the source of the independent credibility assessment rule urged upon the courts. Second, the goal of Helms was to ensure that administrative segregation not serve as a substitute, or be a pretext, for disciplinary confinement, and that the decision to remove an inmate to administrative segregation not be arbitrary or capricious. Formal Wolff hearings may well be incompatible with the types of procedures Helms found suitable for determining whether jailors improperly use administrative segregation for disciplinary purposes or whether they have met the substantive predicate of security risk justifying administrative segregation over time. If the state "set[s] forth criteria that limit the discretion of its prison officials to place inmates in administrative segregation[,] . . . [the presence or absence of] these criteria can change through time, [making] some on going review . . . necessary in order to determine whether they are still being met." Smith v. Shettle, 946 F.2d at 1254-55. An evaluation of the circumstances justifying continuing administrative detention is necessarily, under the Helms periodic review formula, on-going and dynamic, particularly if the detention "is [of] an indefinite term, keyed to changing conditions," as it was in this case. Id. 946 F.2d at 1255. Prescribing precisely what the necessary content of the on-going review procedures should be is a task which might fairly be viewed, even if a liberty interest is affected, as "legislating in the name of the Constitution at an excessive level of detail," id. 946 F.2d at 1255, that which is properly left to the states within certain bounds. Goldberg v. Kelly, 397 U.S. 254, 267, 90 S. Ct. 1011, 1020, 25 L. Ed. 2d 287 (1970) ("importance of not imposing upon the States . . . any procedural requirements beyond those demanded by rudimentary due process"). Cf. Villanova v. Abrams, 972 F.2d at 798 (due process clause "leaves the details of the procedure for continuing evaluation of the committed person's condition to the states"). But the Second Circuit has held that "at some point" more than the periodic review process envisioned by Helms is necessary to justify continued administrative confinement. Wright v. Smith, 21 F.3d at 499-500. Because it has not yet specified what the necessary attributes of this additional process might be, except by reference to the word "hearing" as used in the state regulations at issue in Wright, it is not clear whether the Wolff model was what the court thought would be minimally necessary under Wright. Manifestly then, if it is not clear whether an independent-assessment-of-credibility rule applicable to prison informants will in this circuit ultimately be required in the disciplinary hearing context itself, Russell v. Scully, 15 F.3d at 223, it is wholly unclear whether that requirement would attend Wright's more formal process requirement in the extended administrative confinement context.
Fortunately, it is on the facts of this case unnecessary to resolve these questions, which in the first instance should be decided on a circuit court or higher level, even before analysis of the qualified immunity issue, so that district courts might have some guidance. Siegert v. Gilley, 500 U.S. at 231, 111 S. Ct. at 1793; Mozzochi v. Borden, 959 F.2d at 1179; Russell v. Coughlin, 910 F.2d at 77. For here, the record clearly shows that, if Krenzer considered Maier's reports on March 7th, reliability was manifestly shown by the independent corroboration of the informant's story. This corroboration was provided by the contemporaneously recorded discovery of the unscrewed shower curtain rod, the contraband in plaintiff's cell, the fact that one of the inmate informants admitted participation in the escape conspiracy with plaintiff,
and the discovery of the partially removed junction box cover referred to by that inmate. If reliability of the informant is an issue in either the Wolff or Helms context, the record clearly shows that Krenzer could validly have made the required assessment upon an examination of Maier's contemporaneously made special reports alone. Accordingly, plaintiff's complaint insofar as it alleges a defect in the March 7th hearing is wholly without merit.
Accordingly, plaintiff's due process rights were not infringed during March through June of 1991.
VI. June 1, 1991 Escape Attempt and Aftermath
Plaintiff's conduct on June 1, 1991, is detailed above and need not be repeated here. June 1st was a Saturday. It appears that plaintiff was notified of his privilege restrictions in a detailed June 2nd memorandum (he was already confined to administrative segregation), but it does not appear that he was ever given an opportunity to make a statement in mitigation or explanation, nor does it appear that an administrative hearing was ever held in connection with the June 1st escape attempt. Sgt. J. DiBuado's special report detailing the escape attempt states, "None of the inmates involved (Timmons, Newsome, or Ramsey) or any other inmates were interviewed by me regarding this matter due to pending criminal charges and an ongoing investigation by the CID unit." The loose pages plaintiff submitted to Chief Judge Telesca when he attempted to amend his complaint show, however, that plaintiff wrote (some with crayon) at least five memo/letters to jail officials in the days immediately following the escape attempt complaining of his privilege restrictions. See Decision and Order dated September 16, 1991, recording the effort to submit loose pages (later plaintiff received permission to attach these pages to his amended complaint -- see docket entries #7 and #8). Jail administrators responded to at least three of plaintiff's memoranda. He also wrote to the Chief Clerk of the Monroe County Supreme and County Courts on toilet paper complaining of his condition. The clerk responded to plaintiff by informing him that his "letter would forwarded to [County Court] Judge [John] Connell," who was presiding over plaintiff's criminal matters. Two "Reports of Infraction" traditionally used in the disciplinary process were prepared, one for the escape attempt and one for the contraband. Each report, dated June 2nd, omits any reference to the inmate's plea. Plaintiff's cell was searched on June 2nd and contraband found.
Plaintiff was charged in the criminal courts with Escape in the First Degree and Assault in the Second Degree, and on June 7, 1991, was served with a "Notification to Pursue Criminal Charges" and an Infraction Report. The "Notification" alerted plaintiff of the Jail Bureau's intent to pursue the matter criminally. Sgt. Edward Krenzer explained in an affidavit sworn to November 4, 1991, filed in another state court Article 78 proceeding, that, "pursuant to the standard Monroe County Sheriff's Office procedure, the disciplinary proceedings were and still are held in abeyance pending the outcome of the criminal charges at which point a decision would be made as to whether to pursue the disciplinary matters." Affidavit of Edward C. Krenzer, sworn to November 4, 1991 at P 5 (submitted among the loose pages plaintiff subsequently submitted to the court after he attempted to amend his complaint). Defendants now maintain that "disciplinary hearings were held in abeyance pending the outcome of the criminal charges." Squires Affidavit (docket entry #74), at P 21. Plaintiff was eventually convicted of the escape attempt and sentenced to 2-4 years imprisonment. Weekly periodic reviews occurred as before, and plaintiff does not contend otherwise. In addition, twelve other disciplinary hearings were held between June 1st and December of 1991 when plaintiff was transferred to DOCS custody, each resulting in continued administrative segregation and a verbal reprimand.
Plaintiff's complaint (docket entry #9) (at P 10) is liberally read to allege a denial of a hearing in connection with the June 1st escape attempt. This claim is contained within a discrete claim that the denial of his privileges after the escape attempt was "done as punishment and in retaliation for actions allegedly taken by the plaintiff on the 1st day of June, 1991." Id. at P 10, p.VII. But plaintiff added in the next sentence that he "was never given a hearing in regards to the charges for which he is being punished nor was plaintiff's rights or privileges limited or revoked as the result of a hearing disposition." Id. Under the rationale of Soto v. Walker, 44 F.3d 169 slip opn. at 1127, this is "quite enough" to state a procedural due process claim concerning the June 1st escape attempt.
There was a disciplinary hearing held on June 7, 1991, in connection with an earlier charge of "threatening" jail personnel. Ramsey Affidavit (docket entry #74) at Exh. F. See also, "Notification of Infraction" form dated June 3, 1991, scheduling a hearing on June 5, 1991, and reporting that the hearing was in fact held on June 7, 1991 -- Appended within Exhibit I of Plaintiff's Motion for Assignment of Counsel (docket entry #18), and within Exhibit #1 of Plaintiff's Notice of Motion for Summary Judgment (docket entry #40). The disposition section of the form recites that the hearing was actually held on June 7th and that plaintiff was found guilty. A verbal reprimand and continued administrative segregation was ordered. See also, The Jail Log for June 7th:
1539 hrs: Disciplinary hearings conducted for (1) Ronald Corker, (2) Dennis Walker, and (3) Michael Ramsey . . .
1540 hrs: Disciplinary hearing was given to Michael Ramsey C3, by Sgt. Krenzer. Ramsey was placed in cuffs and shackles. The hearing was held in his cell with Deputies Scarpechi and Zimmerman present standing guard. -- Cpl. Maier.
Response to plaintiff's Notice to Produce (docket entry #27) at Exh. A. This hearing had nothing to do with the June 1st escape attempt. No defects are alleged in this or any of the other disciplinary hearings held between March and December of 1991.
On this record, plaintiff's primary claim that his administrative segregation was disciplinary/punitive instead of administrative in nature is beside the point. If plaintiff "would have been confined in administrative segregation regardless of any punitive motivation, he was not entitled to the heightened due process procedures associated with disciplinary confinement." Matiyn v. Henderson, 841 F.2d at 37. Because the record clearly shows that plaintiff got a Wolff hearing on June 7th in connection with the threatening charge and was found guilty, it is clear that continued administrative confinement in view of his pattern of behavior was supported by due process quite without regard to the escape attempt on June 1st. In other words, the decision to continue him in administrative confinement until his departure from the jail in December of 1991 came with the "heightened procedures" ( id. 841 F.2d at 37) Wright v. Smith and Green v. Bauvi have since held may be applicable to situations of extended administrative confinement. Stated yet another way more consonant with the reasoning in Matiyn v. Henderson, 841 F.2d at 37, plaintiff does not raise a genuine issue of fact whether his continued administrative confinement after the escape attempt would not have been proper even in the absence of any motivation on the part of defendants derived from the escape attempt itself and the lack of the Hewitt v. Helms procedures. Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 287, 97 S. Ct. 568, 576, 50 L. Ed. 2d 471 (1977); Lowrance v. Achtyl, 20 F.3d at 535; Sher v. Coughlin, 739 F.2d 77, 82 (2d Cir. 1984).
Even if plaintiff had presented such a question of fact in connection with the failure to afford the Helms procedures after the June 1st escape attempt, however, it was reasonable in the circumstances for jail administrators to defer the matter pending resolution of the criminal charges, and to refrain from taking a statement from plaintiff. This case is unlike the typical case of a pending criminal investigation, which has been held not to excuse the Helms procedures, Jones v. Manson, 393 F. Supp. 1016, 1020-21 (D. Conn. 1975), because in this case there was the pendency of several prior criminal charges, including the January 23rd escape charges, and the peculiar New York right to counsel rules precluding law enforcement contact with a represented defendant. See generally, People v. West, 81 N.Y.2d 370, 599 N.Y.S.2d 484, 615 N.E.2d 968 (1993); People v. Ruff, 81 N.Y.2d 330, 599 N.Y.S.2d 221, 615 N.E.2d 611 (1993); People v. Rogers, 48 N.Y.2d 167, 422 N.Y.S.2d 18, 397 N.E.2d 709 (1979). Because plaintiff's attempted murder and January 23rd escape charges were pending before County Court Judge John Connell, and because plaintiff was represented by counsel on June 1st in connection with those pending criminal charges, New York law forbade law enforcement contact with plaintiff designed to elicit a statement from him, even on the new escape charge. People v. Rogers, supra, reaffirmed in People v. West, 81 N.Y.2d at 377-79; People v. Ruff, 81 N.Y.2d at 333-34. It is true that New York's right to counsel rule is only part of the exclusionary rule applicable to criminal cases, but there is authority in New York for the proposition that the Rogers exclusionary rule extends to evidence, including physical evidence, subsequently seized as a direct result of a confession suppressible under the Rogers rule on a fruit-of-the-poisonous-tree theory. People v. Knapp, 57 N.Y.2d 161, 174, 455 N.Y.S.2d 539, 441 N.E.2d 1057 (1982). Therefore, defendants exercised understandable caution in not approaching plaintiff on June 1st because if they had done so the criminal investigation may well have been jeopardized and evidence discovered as a result of their talk with plaintiff would have been suppressible. Whether or not due process demands something more of jail administrators than simple deference to the criminal courts, a matter upon which only district court authority seems vaguely to resolve against the defendants, Jones v. Manson, 393 F. Supp. at 1020-21,
it was objectively reasonable for defendants to have believed, particularly in light of New York law, that any hearing on the June 1st escape attempt could await disposition of the criminal charges. See Eggleton v. Gluch, 717 F. Supp. 1230, 1235 (E.D. Mich. 1989), aff'd. mem. 916 F.2d 712, 1990 WL 155316 (6th Cir. 1990). Cf. Green v. Bauvi, F.3d at slip opn. at l486-87.
VII. Loss of Privileges on June 2nd
The Supreme Court has twice left open the question whether a simple "imposition of lesser penalties such as the loss of privileges" require the due process procedures provided in Wolff. Baxter v. Palmigiano, 425 U.S. 308, 323-24, 96 S. Ct. 1551, 1560-61, 47 L. Ed. 2d 810 (1976) (emphasis supplied); Wolff v. McDonnell, 418 U.S. at 571 n.19, 94 S. Ct. at 2982 n.19. See also, Vitek v. Jones, 445 U.S. 480, 494, 100 S. Ct. 1254, 1264, 63 L. Ed. 2d 552 (1980). The Second Circuit similarly has left the issue open. McKinnon v. Patterson, 568 F.2d 930, 937 n.6 (2d Cir. 1977), cert. denied, 434 U.S. 1087, 55 L. Ed. 2d 792, 98 S. Ct. 1282 (1978); Cunningham v. Ward, 546 F.2d 481, 483 (2d Cir. 1976) (per curiam); Mawhinney v. Henderson, 542 F.2d 1, 3-4 (2d Cir. 1976). The question never has been definitively resolved in this circuit, cf. Jermosen v. Smith, 945 F.2d 547, 550-51 (2d Cir. 1991), although one case has suggested otherwise without discussion. Russell v. Scully, 15 F.3d at 222 (opn. on rehrg.). The Eighth Circuit has held that imposition of the penalty of loss of privileges is not cognizable under the Due Process Clause. Quam v. Minnehaha County Jail, 821 F.2d 522, 522-23 (8th Cir. 1987).
In this case, we are not faced with imposition of a lesser penalty in the sense of discipline or punishment. Nor are we faced with loss of privileges while housed in the general population, where the stigmatizing effect of such official action would be manifest. Instead, plaintiff was confined in administrative segregation and had several of his privileges restricted or restored on a weekly basis as the circumstances warranted. The loss of privileges occasioned by the June 2nd memorandum was, of course, the most restrictive of the Superintendent's orders during plaintiff's administrative confinement at the Monroe County Jail, but it was within the realm of measures inmates already confined to administrative segregation should naturally expect to receive from time to time if the circumstances warrant. Cf. Hewitt v. Helms, 459 U.S. at 468, 103 S. Ct. at 869-70 ("the sort of confinement that inmates should reasonably anticipate receiving at some point in their incarceration," here in administrative segregation). Indeed, the administrative segregation ordered in Hewitt v. Helms was accompanied by a similar range of privilege restrictions applicable to an inmate who had been removed to administrative segregation and subjected to the privilege restrictions at the same time. Id. 459 U.S. at 467 n.4, 103 S. Ct. at 869-70 n.4. Accordingly, as in Helms, 459 U.S. at 466-68, 103 S. Ct. at 868-70, I hold that the privilege restrictions plaintiff suffered on June 2, 1991, after the second escape attempt and while he was already lawfully confined to administrative segregation, did not "involve an interest independently protected by the Due Process Clause." Id. 459 U.S. at 468, 103 S. Ct. at 8760. See also, Hall v. Unknown Agents, 825 F.2d 642, 647 (2d Cir. 1987); Caldwell v. Miller, 790 F.2d 589, 603-05 (7th Cir. 1986).
The same analysis for determining whether state law confers on an inmate a liberty interest in avoiding administrative segregation applies to situations of lost privileges. See, Kentucky Department of Corrections v. Thompson, 490 U.S. 454, 462, 109 S. Ct. 1904, 1909, 104 L. Ed. 2d 506 (1989) (visitors); Hernandez v. Coughlin, 18 F.3d 133, 137 (2d Cir. 1994) (conjugal visits), cert. denied, 130 L. Ed. 2d 63, 115 S. Ct. 117 (1994). The state regulation governing the Monroe County Jail, former rule 9 N.Y.C.R.R. § 7006.1(b)(1), provides that an inmate in administrative segregation "shall have access to the same services and privileges" as inmates in the general population "unless restricted by the administrator of the facility for reasons dictated by the circumstances of each case . . ." Id. The regulation prescribes no qualification of the jail superintendent's discretion to impose privilege restrictions attending an inmate's administrative confinement. Thus, with no substantive predicates or mandatory language to guide a jail administrator's decision in removing an inmate's privileges during administrative confinement other than that it may be ordered "for reasons dictated by the circumstances of each case," plaintiff had no liberty interest in retaining privileges possessed by the general population while in administrative confinement. See, Sher v. Coughlin, 739 F.2d at 81 ("unlimited discretion"); Armstrong v. Lane, 771 F. Supp. 943, 949 (C.D. Ill. 1991) (where state regulations did not create a liberty interest for inmates in avoiding being handcuffed or restrained, the court deferred to prison officials' decision to handcuff inmates when outside of the cell).
"Although the state may lawfully subject a pre-trial detainee to 'restrictions and conditions' 'to ensure his presence at trial,' 'those conditions and restrictions [cannot] amount to punishment, or otherwise violate the Constitution.'" Covino v. Vermont Department of Corrections, 933 F.2d at 130 (quoting Bell v. Wolfish, 441 U.S. 520, 536-37, 99 S. Ct. 1861, 1872-73, 60 L. Ed. 2d 447 (1979). Restrictions and conditions inside a prison are deemed administrative, as opposed to disciplinary, where prison officials demonstrate a compelling government interest in the restriction and the purpose of the measure is not solely punishment. Hall v. Unnamed Agents, 825 F.2d at 647 (administrative segregation is forward looking and not retrospective); Bolden v. Alston, 810 F.2d 353, 357 n.3 (2d Cir. 1987) (discipline is imposed as punishment after adjudication of guilt); Patterson v. Coughlin, 761 F.2d 886, 891 (2d Cir. 1985) ("sole purpose . . . is punishment"), cert. denied, 474 U.S. 1100, 88 L. Ed. 2d 916, 106 S. Ct. 879 (1986). Prison officials have legitimate concerns in managing the safety and security of their prisons. Hewitt v. Helms, 459 U.S. at 472, 103 S. Ct. at 872. Protecting against a threat to prison security by inmates attempting to escape is such a compelling government interest. Patterson v. Coughlin, 761 F.2d at 890; Sher v. Coughlin, 739 F.2d at 82.
Defendants' confinement of plaintiff to administrative segregation, and accompanying suspension of privileges, was an administrative matter and not a disciplinary one. Accordingly, the loss of privileges on June 2nd did not affect plaintiff's rights under the Constitution. Defendants have demonstrated a compelling administrative justification for their actions, and there is no genuine issue of material fact in dispute on this point.
Defendants' motion for summary judgment is granted for the reasons set forth more particularly above.
KENNETH R. FISHER
UNITED STATES MAGISTRATE JUDGE
Dated: Rochester, New York
March 3, 1995