The opinion of the court was delivered by: HAROLD BAER, JR.
HAROLD BAER, JR., U.S.D.J., Southern District of New York
Chief Judge Thomas J. McAvoy of the United States District Court for the Northern District of New York transferred this dispositive motion to me, by order dated November 5, 1994, due to the backlog caused by a number of vacancies in his district.
Plaintiff pro se Robert J. Golub ("Golub"), a New York State prisoner, brings suit under 42 U.S.C. § 1983 asserting violations of various constitutional rights arising out of his confinement in Involuntary Protective Custody ("IPC") at the Auburn Correctional Facility, located in Auburn, N.Y. Defendants move for summary judgment.
On April 3, 1990, plaintiff was convicted of murder in the second degree for the publicized killing and mutilation of a fourteen year old girl who lived in plaintiff's neighborhood in Valley Stream, Long Island on March 3, 1989. He was sentenced on June 1, 1990 to a prison term of twenty-five years to life. Defendants' Ex. A, "Commitment to the State Department of Correctional Services." On June 15, 1990, plaintiff entered Downstate Correctional Facility. Id.
Plaintiff was transferred to the Auburn Correctional Facility on August 27, 1990, after an approximately one-and-a-half month stay at Sing Sing's Transfer Unit. Defendants' Ex. D, "Chronological Entry Sheet." On August 28, 1990, plaintiff was notified that due to the "severe notoriety and nature of [his] crime . . . the administration at Auburn felt his safety would be in jeopardy if he remained in [the] general population." Defendants' Ex. D, "Notice to Inmate, Special Housing Protective Admission Consideration."
That day plaintiff was interviewed by a corrections officer. During the interview, plaintiff objected to being placed in protective custody. Also on that day, plaintiff signed a form statement that he felt he had "no need for protection from anyone. . . at Auburn" and that there was "no threat to [his] life by remaining in the general population." Defendants' Ex. D, Stmt. by Robert J. Golub, Aug. 28, 1990.
The following day a recommendation was issued, which was given to plaintiff, stating that "due to the extreme notariety [sic] and heinous nature of [his] crime, it [was] felt that [his] presence in [the] general population at Auburn Corr. Fac. would be a threat to the safety and security of [the] facility. Therefore, [he was] being recommended to be placed in Involuntary Protective Custody Status." Defendants' Ex. D, "Involuntary Protective Custody Recommendation", Aug. 29, 1990.
The recommendation also included a "Notice to Inmate" advising Golub that a hearing would be conducted within fourteen days to review the recommendation, as required by New York State regulations. N.Y. Comp. Codes R. & Regs. tit. 7, § 330.3(b).
The notice also advised the plaintiff that he was entitled to an interview with a corrections officer ranked lieutenant or higher within 72 hours of his receiving notice of the recommendation. As noted above, plaintiff had been interviewed by a corrections officer the day before, and had already voiced his objection to being confined in involuntary protective custody ("IPC"). The superintendent's hearing to review plaintiff's IPC status was conducted on September 10, 1990 by defendant Michael Maher. Plaintiff alleges that by conducting the hearing on September 10, 1990, the defendants failed to comply with the fourteen-day requirement imposed by the regulations. September 10th, however, is the fourteenth day after August 27th, and thus defendants did comply with the regulatory time period.
Plaintiff further alleges that the hearing was "arbitrary, capricious, and an abuse of discretion." Plaintiff's Mem. L. in Opp. to Defendants' Mot. for Summ. J. ("Plaintiff's Brief") at 7. Defendant Donald Selsky had upheld the determination made at that hearing, finding that it was "conducted in accordance with established procedures." Id. New York regulations require that IPC status be reviewed on a periodic basis, generally one time for each month of continuing IPC status. N.Y. Comp. Codes R. & Regs. tit. 7, § 330.3(b)(2). Plaintiff alleges that the subsequent hearings held to review his IPC status were likewise summary, arbitrary and capricious. Complaint, PP 17-19.
On May 31, 1991, plaintiff filed an Article 78 proceeding with the Supreme Court of the State of New York, County of Cayuga, "challenging his continued confinement" in IPC. Plaintiff's Mem. at 8. Acting Justice Robert A. Contiguglia found for plaintiff and ordered that plaintiff be transferred to the general population at Auburn, explaining that:
Reviews of [Golub's] status, while timely and in compliance with state codes, have been summary and in no way provide due process. The sole articulable reason for placing [Golub] in involuntary protective custody is the violent nature of his underlying offense and its notoriety. If such was [sic] sufficient, every inmate in Auburn Correctional Facility would be in protective custody. No threat against petitioner has ever been made by anyone, anywhere.
Golub v. Walker, Civ. No. 91-2066 (N.Y. Sup. Ct. Cayuga County Sept. 6, 1991). On September 13, 1991, plaintiff was transferred to the Southport Correctional Facility. Plaintiff had served a total of 217 days in IPC, which excludes time for which he ...