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July 10, 1995

CHARLES UZZELL, Plaintiff, against CHARLES J. SCULLY, Superintendent, Green Haven Correctional Facility; W.L. WRIGHT, Correctional Captain; and J.A. DOLAN, Correction Sergeant, Defendants.

The opinion of the court was delivered by: SHIRA A. SCHEINDLIN



 Pro se plaintiff, Charles Uzzell, brings this action for monetary damages under 42 U.S.C. § 1983 for alleged violations of his Fourteenth Amendment Due Process rights. Plaintiff now moves for partial summary judgment pursuant to Fed. R. Civ. P. 56. Defendants have cross-moved for summary judgment. For the reasons stated below, plaintiff's motion, is denied, and defendants' motion is granted. *fn1"


 At times relevant to this action, plaintiff was an inmate of the Green Haven Correctional Facility ("Green Haven"), Stormville, New York. See Affidavit of Marilyn Trautfield ("Traut. Aff.") at P 2. On July 7, 1990, plaintiff was placed in keeplock pending a disciplinary hearing for allegedly violating Rule 113.13, "Inmate Shall Not Be Under the Influence of Intoxicants" and Rule 106.10, "Refusing Direct Order." Traut. Aff. at P 3 and Plaintiff's Complaint ("Compl.") at PP 5, 7, 8. The incident giving rise to these charges occurred on July 7, 1990 at approximately 8:15 p.m. Traut. Aff. at P 4.

 On July 8, 1990, at 8:28 p.m., plaintiff was served with a copy of an Inmate Misbehavior Report. *fn2" Compl. at P 9. On July 9, 1990 at 8:44 a.m., approximately twelve (12) hours after the misbehavior report was served upon plaintiff, Correctional Captain W.L. Wright, commenced a Tier III Disciplinary Hearing. Compl. at P 10, Traut. Aff. at P 5.

 At the hearing, plaintiff pled "not guilty" to the charge of violating Rule 113.13 and pled "guilty with an explanation" to the charge of violating Rule 106.10. *fn3" Traut. Aff. at P 6. The hearing was adjourned until July 10, 1990. Traut. Aff. at P 9. Plaintiff was found guilty of both charges and was sentenced to forty-five (45) days in keeplock from July 10, 1990 to August 23, 1990, with credit for one day served. *fn4" Traut. Aff. at P 10.

 On July 12, 1990, plaintiff requested from First Deputy Superintendent C. Artuz, a copy of the Green Haven Policy and Procedure. *fn5" Compl. at P 16. Artuz denied plaintiff's request claiming that "the policy is designated for staff only." Compl. at P 17. Plaintiff eventually obtained a copy by other means. Compl. at P 18. On or about July 16, 1990, plaintiff filed an appeal from the disposition of the disciplinary hearing. *fn6" Traut. Aff. at P 11 and Compl. at P 19.

 On July 30, 1990, Artuz directed all areas to dismiss and expunge the hearing from all records due to a procedural error. *fn7" Compl. at P 23 and Traut. Aff. at Ex G. All records of this hearing have been expunged from Green Haven's records. Traut. Aff. at P 12. Plaintiff served twenty-three days of the forty-five day sentence before he was released from keeplock. Compl. at P 24 and Traut. Aff. at P 13.


 Summary judgment may be granted when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Mays v. Mahoney, 23 F.3d 660, 662 (2d Cir. 1994); Celotex v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Fed.R.Civ.P. 56(c). To grant a motion for summary judgment the Court must determine that a reasonable finder of fact could not find in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 The moving party bears the burden of proving that there is no genuine issue of material fact. Adickes v. S.H. Kress and Co., 398 U.S. 144, 156, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). Once the moving party succeeds in meeting its burden, the burden shifts to the non-moving party to come forth with evidence of specific facts showing that a genuine issue exists. Anderson, 477 U.S. at 256; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986).


 A. Twenty-Four Hours Notice of the Disciplinary Hearing

 An inmate may be confined to keeplock, or administrative segregation, pending an investigation into an alleged disciplinary violation. See Hewitt v. Helms, 459 U.S. 460, 467, 74 L. Ed. 2d 675, 103 S. Ct. 864 (1983). In New York, keeplock may be imposed when an officer reasonably believes that a prison rule has been violated. See Soto v. Walker, 44 F.3d 169 (2d Cir. 1995). Liberally construing the pro se complaint, plaintiff alleges that he has a constitutionally protected liberty interest to be free from wrongful confinement in keeplock. See Compl. at PP 24 and 28. He claims that his due process rights were violated because he was not given at least twenty-four hours notice of the charges against him and thus was unable to prepare a defense to present at the disciplinary hearing. See Compl. at P 11 and Affidavit of Charles Uzzell in Support of Plaintiff's Motion for Summary Judgment and in Opposition to Defendants' Motion for Summary Judgment ("Pl. Aff.") at P 14 and Ex. F. As a result, according to Uzzell, he spent twenty-three days in keeplock. Compl. at P 24 and Traut. Aff. at P 13.

 While prisoners are not left devoid of all rights, incarceration does impose limits upon many of them. Wolff v. McDonnell, 418 U.S. 539, 555, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974). This "retraction [is] justified by the considerations underlying our penal system." Id. at 555 (quoting Price v. Johnston, 334 U.S. 266, 285, 92 L. Ed. 1356, 68 S. Ct. 1049 (1948)).

 On June 19, 1995, the United States Supreme Court "sounded the death knell" for claims alleging that the imposition of keeplock necessarily entitles inmates to a liberty interest which would invoke the procedural due process protections guaranteed by the Fourteenth Amendment to the United States Constitution. See Winters v. Warden, No. 95 C 3535, 1995 U.S. Dist. LEXIS 8739, at *3 (N.D.Ill. June 23, 1995) (quoting Sandin v. Conner, 115 S. Ct. 2293, 132 L. Ed. 2d 418, 1995 U.S. LEXIS 4069, No. 93-1911, 1995 WL 360217 (U.S. June 19, 1995)). In Sandin, Chief Justice Rehnquist stated that no liberty interest is created by the imposition of segregated confinement. *fn8" Sandin, No. 93-1911 at *6. Prisoners maintain a liberty interest only in those situations imposing "atypical and significant hardship ... in relation to the ordinary incidents of prison life." Id. at *5, *6. Consequently, the procedural due process requirements set forth in Wolff, including twenty-four hours notice, are not triggered by confinement in keeplock as a prisoner does not have a protected liberty interest in remaining free from such confinement. *fn9"

 While Uzzell is correct in asserting that the hearing officer has discretion with respect to penalties imposed upon inmates when an infraction has occurred, such discretion does not implicate a liberty interest and give rise to a claim that due process has been violated. See Reply of Charles Uzzell ("Pl. Reply") at P 14 and Ex. H; Wolff, 418 U.S. at 551, n. 8. Because Uzzell's penalty was keeplock, and not loss of good time credit, no liberty interest was invoked and thus he was not deprived of procedural due process by the State's failure to adhere to its twenty-four hour notice Rule. *fn10"

 Because Uzzell was placed in keeplock as a result of the disciplinary charges, he has no standing to bring a claim under 42 U.S.C. § 1983, alleging a deprivation of his constitutional right to due process. Thus, plaintiff's motion for summary judgment is denied and defendants' motion for summary judgment is granted with respect to timely notice of the disciplinary hearing.

 B. Other Allegations of Procedural Violations

 Plaintiff also complains of additional procedural violations:

 1. Sergeant Dolan allegedly did not follow the proper procedures in that he failed to get the approval of the Watch Guard, Lieutenant Robertson, prior to directing plaintiff to take a breathalizer test. Compl. at P 18. However, as is evident from the form entitled, "Request for Breath Test," Lt. Robertson did approve. See Traut. Aff. at Ex. B, p.1.

 2. Sergeant Dolan did not call medical staff to evaluate plaintiff nor ask plaintiff to go to the hospital. Compl. at P 13.

 3. First Deputy Superintendent, C. Artuz, denied plaintiff's request to obtain a copy of the Policy and Procedure. Compl. at P 17. Apparently, plaintiff asked for a copy on July 12, 1990 - after his disciplinary hearing - and eventually obtained a copy sometime prior to July 16, 1990, when he filed an appeal. See Compl. at PP 17, 18, 19.

 Defendants move for summary judgment with respect to these alleged due process violations. Because plaintiff's allegations, even if true, did not "[impose] atypical and significant hardship ..." upon him and thus did not result in the deprivation of a protected liberty interest, plaintiff's right to due process has not been violated. Sandin, No. 93-1911 at *5. Thus, defendants' motion for summary judgment is granted with respect to these issues.


 For the reasons discussed above, plaintiff's motion for summary judgment is denied and defendants' motion for summary judgment is granted.




 Dated: New York, New York

 July 10, 1995

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