and plaintiff was in the position to bite him in the area of the right upper abdomen. Gagliardi screamed when he was bitten, and Kerr heard him scream. Gagliardi showed Kerr the bite marks as they were walking back down the galley after placing plaintiff back in his cell. The facility's medical records show that Gagliardi was treated for a bite wound in the right upper abdomen which had occurred that very day. This proof not only supports the finding made after trial regarding plaintiff's excessive force claim, but also the finding that Kerr did not materially misrepresent the facts when he stated that he "witnessed" plaintiff bite Gagliardi.
Accordingly, based on the proof presented at trial, it was objectively reasonable for Officer Kerr to believe that his statement in support of the criminal charges brought in Alden Town Court did not violate plaintiff's substantive due process right not to be convicted on the basis of false information. Officer Kerr is therefore entitled to qualified immunity against such a claim.
b. Handcuff Restraint Order.
Plaintiff also contends that the proof at trial supports a claim that his right to procedural due process was violated when he was transported in handcuffs from his SHU cell to the SHU recreation area on January 18 and 20, 1988. Plaintiff has not cited any cases in support of his argument that such a right was clearly established as of that date. Instead, he claims that the Wende Correctional Facility's express policy and procedure regarding the handcuffing of SHU prisoners when exiting their cells
has created an enforceable liberty interest in remaining free from such restraints, and that this interest was unconstitutionally infringed when he was transported from his cell in handcuffs after the order authorizing such restraints had expired.
It was, of course, clearly established by January 20, 1988 that a state may confer enforceable liberty interests on prisoners through its enactment of statutory or regulatory measures which place substantive limitations on prison officials' "broad administrative and discretionary authority over the institutions they manage . . . ." Hewitt v. Helms, 459 U.S. 460, 467, 469-72, 74 L. Ed. 2d 675, 103 S. Ct. 864 (1983); Bolden v. Alston, 810 F.2d 353, 357 (2d Cir.), cert. denied, 484 U.S. 896, 98 L. Ed. 2d 188, 108 S. Ct. 229 (1987). For a liberty interest to be conferred by the state, two requirements must be met: (1) the state must have articulated specified "substantive predicates" which limit the discretion of state officials, and (2) the state must have employed "explicitly mandatory language" requiring state officials to follow those substantive predicates. Klos v. Haskell, 48 F.3d 81, 87 (2d Cir. 1995) (citing Hewitt v. Helms, supra at 466; Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 462-63, 104 L. Ed. 2d 506, 109 S. Ct. 1904 (1989)).
An analysis of Wende's SHU procedures (see Note 2, supra) in light of these requirements indicates that the state has conferred no liberty interest on inmates to be free from handcuffs while outside their cells unless a current restraint authorization order is in place. The Wende procedure provides that the Deputy Superintendent of Security "will" issue a 30-day restraint order "if" the SHU supervisor on duty determines "in his/her opinion" that a particular inmate "may be assaultive." This is not the "language of an unmistakably mandatory character" that is indicative of an enforceable liberty interest. Hewitt v. Helms. supra, 459 U.S. at 471; Gill v. Mooney, 824 F.2d 192, 194 (2d Cir. 1987) (prisoner has no constitutional liberty or property right to his prison job). As stated by the Supreme Court, "if the decisionmaker is not required to base [his] decisions on objective and defined criteria,' but instead 'can deny the requested relief for any constitutionally permissible reason or for no reason at all,' the State has not created a constitutionally protected liberty interest." Olim v. Wakinekona, 461 U.S. 238, 249, 75 L. Ed. 2d 813, 103 S. Ct. 1741 (1983) (quoting Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 466-67, 69 L. Ed. 2d 158, 101 S. Ct. 2460 (1981)). The only criteria limiting the Wende Deputy Superintendent's discretion to authorize handcuff restraints for a particular SHU inmate is the SHU supervisor's opinion regarding the inmate's behavior. There is no language in the procedure suggesting that the Deputy Superintendent could not deny the inmate's request to remain free from handcuffs while outside his cell for any reason, such as assaultive behavior toward staff.
Once the restraint authorization is given, the procedure provides that it "must be reviewed and documented for each 30 day period." However, in the absence of language substantively limiting the Deputy Superintendent's discretion to authorize handcuff restraint for assaultive prisoners, this 30-day review requirement does not in and of itself create an enforceable liberty interest to be free from restraints when the authorization expires. See, e.g., Wright v. Smith, 21 F.3d 496, 498 (2d Cir. 1994); see also Maust v. Headley, 959 F.2d 644, 649 (7th Cir. 1992) (prisoner's procedural right to pre-transfer hearing has no substantive meaning without protected liberty interest in remaining in least restrictive environment).
In addition, plaintiff has failed to show that the handcuff restraint was a "disciplinary" rather than an "administrative" condition of his confinement in SHU, requiring any more process than he was given. See, e.g., Hall v. Unknown Agents of N.Y. Corr. Serv. Dep't, 825 F.2d 642, 647 (2d Cir. 1987). Indeed, plaintiff has failed to explain how his treatment in the Wende SHU would have differed in any way had he been provided the right which he claims he was deprived of.
Finally, in its recent analysis of whether New York's "shock incarceration" program creates an enforceable liberty interest, the Second Circuit noted a distinction between alleged deprivations of an inmate's "justifiable expectation" of liberty, such as the revocation of parole at issue in Morrissey v. Brewer, 408 U.S. 471, 33 L. Ed. 2d 484, 92 S. Ct. 2593 (1971), and "deprivations imposed in the course of the daily operations of an institution," such as the administrative confinement at issue in Helms, supra. Klos v. Haskell, supra, 48 F.3d at 87. In light of the holding in Klos that the inmate's due process rights were not violated when he was unexpectedly removed from the shock incarceration program at the Monterey Correctional Facility and transferred to the general population at the Elmira Correctional Facility, I find it unlikely that the Second Circuit would find an enforceable liberty interest implicated by the minor deprivation imposed on an "assaultive" inmate when he is handcuffed prior to exiting his SHU cell at the Wende facility.
For these reasons, I find that it was not clearly established as of January 20, 1988 that plaintiff had an enforceable liberty interest in remaining free from handcuff restraints when exiting his SHU cell, whether or not the order authorizing such restraint had expired. Defendants are therefore entitled to qualified immunity against such a claim.
Furthermore, as demonstrated by the above discussion, the proof presented at trial clearly does not support the claims sought to be added to the case at this late date.
Accordingly, I find that it would be futile to allow plaintiff to amend his complaint after trial of his excessive force claim to add claims for violation of his substantive and procedural due process rights.
For the reasons set forth above and in this court's oral decision after trial, it is hereby ORDERED that plaintiff's oral motion (Item 85, pp. 10-22) for leave to amend the pleadings to conform to the evidence is denied, and the case dismissed. The Clerk of the Court is directed to enter judgment in favor of defendants.
Pursuant to 28 U.S.C. § 1915(a), it is hereby CERTIFIED that appeal from this judgment would not be taken in good faith.
DATED: Buffalo, New York
May 16, 1995
CAROL E. HECKMAN
United States Magistrate Judge