Jones, the only remaining defendant, about those allegations. Indeed, because defendant Jones was absent from the facility for medical reasons from February 5, 1987, when he was hospitalized on an emergency basis for intestinal bleeding, until he returned to the facility in May, 1987, it would have been impossible for plaintiff to have spoken to Jones about his concerns during this time frame.
Defendant Jones testified generally about how it came to be that by July, 1987, Great Meadow had a unit for protective custody status inmates only, whereas it had no such unit prior to that time. After the DOC issued Directive 4948, Jones Was trying to obtain the permission of DOC's Commissioner to maintain the E-8 unit as a Special Housing Unit ("SHU"). According to Jones, on a unit with that designation, the more restrictive rules governing SHU assignment would be followed by the whole unit. Between the time Jones made that request of the Commissioner and February 5, 1987, when he was hospitalized, Jones conceded that he had some knowledge that protective custody inmates who were housed on E-8 were not routinely receiving three hours out-of-cell time daily.
Jones suggested that security was the reason that those inmates were not routinely receiving their permitted daily three hours out-of-cell time. More specifically, Jones explained that it represents a threat to security if while the E-8 unit was treated as an SHU, a protective custody inmate, who is allowed to receive commissary and packages privileges,
is housed next to an SHU inmate who does not have those same privileges. The danger arises because in that situation an SHU inmate may come into possession of something that he or she has been forbidden to have because of their SHU status. In other words, to put it bluntly, under defendant Jones' rationale, on a unit such as E-8, where the status of the inmates varied, an inmate's conditions of confinement were determined, in large part, by the status of the inmates having the fewest privileges.
Insofar as defendant Jones' personal involvement with plaintiff Cody is concerned, the record evidence clearly demonstrates that he had no involvement - either direct or indirect - from February 12, 1987, through March 17, 1987. As noted earlier, his lack of direct, personal involvement during that time stems from the fact that he was out of the facility on medical leave. Defendant Jones was discharged from the hospital on February 15, 1987, and after that he recuperated at home until May, 1987, when he returned to work as the Facility Superintendent. While he was recuperating at home, the Acting Superintendent in Charge, Deputy Superintendent Van Zandt did visit Jones from time-to-time, but no mention was made of plaintiff Cody during those visits. The fact that Van Zandt did not mention plaintiff Cody by name is certainly understandable given the prison population at the time, roughly 1,500 inmates. In that setting, it seems highly unlikely that a superintendent, acting or otherwise, would know about complaints of specific inmate complaints, unless the prisoner contacted the superintendent directly when he happened to be on that prisoner's block, as Jones testified he was occasionally; or unless the prisoner sent a sealed letter to the superintendent, which Jones also testified was done on occasion.
It was not until June, 1987, when defendant Jones received the summons and complaint in this action, that he first became aware of plaintiff and his dissatisfaction with the conditions of his confinement on E-8. Jones' recollection as to exactly what he did after that is a bit vague. He believes that he read the complaint when he got it, and that he probably conducted an investigation, but by then, in light of the anticipated move of the protective custody status inmates to C-2, he viewed plaintiffs complaint as a "corrected problem." Significantly, before receiving that formal complaint, Jones never received any complaints from plaintiff Cody, despite the availability of a grievance mechanism at the facility for such complaints. Plaintiff was aware of that facility grievance procedure, and in fact, he used it to complain about not getting certain medications, but he testified that he did not file a grievance pertaining to lack of recreation time. Unaware that Jones was away from the facility on sick leave, plaintiff does claim that he wrote Jones regarding the conditions of his confinement, but that he never got an answer. Unlike plaintiffs March 27, 1987, letter to Stinson regarding medication,
and his February 18, 1987, letter sent to Stinson (presumably referring to his protective custody status requests),
no documents which plaintiff claims to have sent to Jones were ever introduced into evidence. According to plaintiff, that omission is because when he was moved to the C-2 unit in July, 1987, a lot of his paperwork disappeared, and he assumes those letters were among them. Taking all of the foregoing into account, the court has no reason to disbelieve Jones's testimony that until June, 1987, he had no knowledge of plaintiffs complaints as to his conditions of confinement.
Before turning to the specific allegations of this lawsuit, the court makes a few additional findings of fact which help to give a more complete picture as to what steps the prison officials at Great Meadow were taking to fully implement Directive 4948. Despite that fact that Great Meadow did not official promulgate rules and/or procedures implementing Directive 4948 until March 17, 1987, when Stinson issued the two interdepartmental communications previously discussed, it appears to the court that the responsible prison officials were not sitting idly by between the date of that Directive and March 17, 1987. Rather, as defendant Jones testified, for part of that time they were waiting for word from the DOC Commissioner as to whether, in effect, they would have to create a unit devoted exclusively to protective custody inmates. Moreover, perhaps anticipating that they would not be successful in that request, Jones testified that as early as October, 1986, even before the issuance of Directive 4948, Deputy Superintendent Hollins began drafting procedures providing for recreation opportunities for E-8 inmates. In the court's opinion, from November, 1986, through July, 1987, which defendant Jones aptly described as a "transition stage," given the demands on space at Great Meadow, combined with the fact that the inmates there had a wide variety of classifications, which the facility was trying to accommodate, those officials were making a reasonable effort to fully implement Directive 4948 in as timely a manner as possible under rather adverse circumstances.
CONCLUSIONS OF LAW
In his complaint, brought pursuant to 42 U.S.C. § 1983, plaintiff set forth a number of causes of action against three State defendants. On March 25, 1994, Magistrate Judge Ralph Smith issued a report-recommendation, which this court adopted in its entirety on May 23, 1994. The Magistrate Judge recommended, and this court concurred, that defendants' motion for summary judgment be granted as to two of the three defendants, but denied as to the third, Great Meadows Superintendent Everett Jones. As to that lone defendant, the Magistrate found that "a genuine issue of material fact exists with regard to the personal involvement of defendant Jones" with respect to plaintiffs allegations that he was confined to his cell for up to twenty-four hours a day from February 13, 1987, through March 16, 1987; and that to take advantage of outdoor recreation opportunities, he had to walk through unsecured areas of the general prison population and allow himself to be confined in a recreation yard with non-protective custody inmates. Report-Recommendation at 7 and 10.
Even though both the complaint and the Report-Recommendation confine the time period of plaintiffs allegations to the approximately one month period from February 12, 1987, through March 16, 1987, during the trial it became clear that the parties were treating plaintiffs alleged constitutional violations as having arisen during two separate time periods - the one just mentioned, as well as from March 17, 1987 through July 25, 1987, when plaintiff was eventually assigned to C-2, a protective custody unit. Thus, even though plaintiffs complaint does not include that latter period, because both parties tried the case as though that time frame was also at issue, as Rule 15(b) permits, the court is treating the issue of whether plaintiffs constitutional rights were violated from March 17, 1987, through July 25, 1987, as though such allegations had been contained in plaintiffs original complaint. See Fed. R. Civ. P. 15(b) ("When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.").
Having determined the scope of plaintiffs allegations herein, the court is now in a position to address the merits of his constitutional claims. First, the court will address plaintiffs claim that his Fourteenth Amendment due process rights were violated when he did not uniformly receive two meals out-of-cell per day, one hour daily outdoor recreation, and a total of three hours out-of-cell time per day, and when purportedly he was exposed to the general population on the way to the exercise yard and while there. The court will then turn to a consideration of plaintiffs Eighth Amendment claim that he did not receive one hour of daily outdoor exercise. As the court understands it, that claim is limited to the first time period at issue herein - from February 12, 1987 through March 17, 1987, when plaintiff was housed on the E-8 unit.
I. Due Process
Without making any broad, sweeping pronouncements as to the impact of Sandin on other pending litigation wherein a plaintiff inmate is claiming a due process violation, in the present case, the court is forced to conclude that under Sandin plaintiff Cody's due process claim lacks merit.
The Supreme Court in Sandin addressed the relationship between prison regulations and liberty interests that the due process requirements enunciated in Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974), are intended to protect.
The inmate in Sandin asserted that his placement in disciplinary segregation for thirty days violated his constitutional right to procedural due process. The district court held that the inmate (Conner) had no liberty interest in being free from punitive segregation. On appeal, the Ninth Circuit reversed, holding that the inmate did have a protected liberty interest in being free from punitive segregation. Conner v. Sakai, 15 F.3d 1463, 1466 (9th Cir. 1993). The basis for that finding by the Ninth Circuit was language in the regulation at issue requiring that the prison disciplinary committee find guilt, and thus impose disciplinary segregation, only if there was substantial evidence of misconduct. Id. Reversing the Ninth Circuit, the Supreme Court found that inmate Conner had neither a state created liberty interest, nor a liberty interest arising from the Due Process Clause.
Recognizing, as it has previously, that "prisoners do not shed all constitutional rights at the prison gate,"
the Supreme Court nonetheless reiterated that "lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system." Sandin, 132 L. Ed. 2d 418, 1995 U.S. LEXIS 4069, at *24, 115 S. Ct. 2293-*25 (quoting Jones v. North Carolina Prisoners' Labor Union, 433 U.S. 119, 125, 97 S. Ct. 2532, 53 L. Ed. 2d 629 (1977) (quoting in turn Price v. Johnston, 334 U.S. 266, 285, 68 S. Ct. 1049, 92 L. Ed. 1356 (1948)). The Court concluded its discussion of Conner's potential liberty interest under the Due Process Clause by stating, "Discipline by prison officials in response to a wide range of misconduct falls within the expected parameters of the sentence imposed by a court of law." 1995 U.S. LEXIS 4069, at *25.
The Court then went on to hold that inmate Conner also had no state created liberty interest.
In reaching that conclusion, the Court specifically rejected the approach taken in Hewitt:
Instead of looking to whether the State created an interest of "real substance" comparable to the good time credit scheme of Wolff, the Court asked whether the State had gone beyond issuing mere procedural guidelines and had used 'language of an unmistakably mandatory character' such that the incursion on liberty would not occur 'absent specified substantive predicates.' Finding such mandatory directives in the regulations before it, the Court decided that the State had created a protected liberty interest.
1995 U.S. LEXIS 4069, at *14-15 (quoting Hewitt, 459 U.S. at 471-472). Abandoning the Hewitt analysis, the Court returned to a focus on the nature of the deprivation, rather than the mandatory nature of the prison regulation. The Court's rationale for this shift was that the Hewitt analysis "produced at least two undesirable effects." Id. at *18. "First, it creates disincentives for States to codify prison management procedures in the interest of uniform treatment." Id. at *18. "Second, [that] approach has led to the involvement of federal courts in the day-to-day management of prisons, often squandering judicial resources with little offsetting benefit to anyone." Id. at *19. Involving the courts in day-to-day management of the prison system has, in the Supreme Court's view, "run counter to the view expressed in several of our cases that federal courts ought to afford appropriate deference and flexibility to state officials trying to manage a volatile environment." Id. (citations omitted). The Court was also persuaded to depart from Hewitt because that approach "encouraged prisoners to comb regulations in search of mandatory regulations on which to base entitlements to various state-conferred privileges." Id. at *17. Thus, irrespective of the language of the governing regulation or statute, the Supreme Court held that a liberty interest protected by the Due Process Clause may arise only "under certain circumstances." Id. at *21 (citation omitted).
More particularly, the Supreme Court held that "these interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, . . ., nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." 1995 U.S. LEXIS 4069, at *21-22 (citations omitted). In the case of inmate Conner, the Supreme Court found that he had no state created liberty interest because his discipline in segregated confinement did not satisfy that standard. Id. at *26 (footnote omitted). The Court offered three justifications for its holding: "(1) disciplinary segregation mirrored conditions of other forms of completely discretionary confinement; (2) based on a comparison between inmates inside and outside disciplinary segregation, the state's action in placing him there for 30 days did not significantly disrupt Conner's environment; and (3) the state's action did not affect the duration of Conner's sentence." Christie v. Barrington, No. 94-1653, 1995 U.S. App. LEXIS 17195, at *10 (7th Cir. July 13, 1995) (citing Sandin).
In the present case, the court finds that plaintiff cannot satisfy this new standard as articulated by the Sandin Court. Under Sandin, "as a threshold matter, courts are directed to determine whether the 'conditions suffered were expected within the contour of the actual sentence imposed.'" Pryor-El v. Kelly, 892 F. Supp. 261, 1995 U.S. Dist. LEXIS 8994, at *20 (D.C. 1995) (quoting Sandin, 1995 U.S. LEXIS 4069, at *27 n. 9); see also Austin v. Lehman, 893 F. Supp. 448, 1995 U.S. Dist. LEXIS 9367, at *14 (E.D.Pa. 1995) (citations omitted) ("Under Sandin's new methodology, . . ., the seriousness of the deprivation suffered guides the recognition of state-created liberty interests."). Certainly, the conditions under which plaintiff Cody was confined prior to July 25, 1987, are "expected within the contours of the actual sentence imposed." See Sandin, at *27 n. 9. To be sure, prior to July 25, 1987, plaintiff did not always receive one hour outdoor exercise. But the court is simply unable to find that that deprivation "imposes atypical and significance hardship on the inmate in relation to the ordinary incidents of prison life." See id. at *21 - *22; see also Hunter v. Gomez, 95-15208, 1995 U.S. App. LEXIS 16236, at *2 (9th Cir. June 30, 1995) (relying upon Sandin, the Court refused to find that inmates had a constitutionally protected liberty interest in yard access when they complained of restricted yard access because of their assigned work status. Nor is the court able to find that because plaintiff did not receive two meals out-of-cell per day between February 12, 1987 and March 16, 1987, he was subjected to an "atypical and significant hardship" so as to implicate the Due Process Clause. Third, even though plaintiff did not receive a total of three hours out-of-cell time per day between February 12, 1987, and March 16, 1987, the court also finds that such deprivation did not result in an "atypical and significant hardship" within the meaning of Sandin. Finally, the court is not persuaded that even if plaintiff was, on a few occasions, taken to the yard via the general population, and also required to recreate with those inmates, that those actions rise to the level of an "atypical and significant hardship" under Sandin.
Admittedly, between February 12, 1987, and July 25, 1987, plaintiff Cody did not always receive all of the conditions of confinement for protective custody inmates, which Directive 4948 identifies; but, when the whole picture is examined, the court cannot find that his conditions of confinement during that time "present a dramatic departure from the basic conditions" of his sentence. See Sandin, at *25. Furthermore, as in Sandin, nothing in the State's actions affected the duration of Cody's sentence. In short, the particular deprivations at issue in this case, in the court's view, did not "impose atypical and significant hardship on [plaintiff Cody] in relation to the ordinary incidents of prison life." See id. at *21 - *22. Accordingly, plaintiff Cody does not have a liberty interest in DOC identified conditions of confinement for a protective custody status inmates such as would entitle him to invoke the Fourteenth Amendment's Due Process Clause.
The court has one final observation before turning to plaintiff's Eighth Amendment claim, and that is that given the undeniably broad language of Sandin, the court is not convinced, as plaintiff Cody seems to be urging, that Sandin is limited to cases where a plaintiff inmate is challenging some disciplinary action taken against him. Indeed, in the short time since Sandin was decided, courts have relied upon Sandin to find that deprivation of the ability to participate in a furlough program is not an "atypical and significant hardship" see Briggs v. Fields, 94-6400, 1995 U.S. App. LEXIS 18069 (10th Cir. July 19, 1995); and to find that a prison headgear restriction also is "not "atypical" of prison life. See Muslim v. Frame, 891 F. Supp. 226, 1995 U.S. Dist. LEXIS 9379 (E.D.Pa. 1995). Neither Briggs nor Muslim were disciplinary action cases. What is more, it seems to this court that if the Supreme Court intended to limit the impact of Sandin to disciplinary cases, it could easily have done so, but it did not. Therefore, although the court is fully cognizant that plaintiff Cody was not disciplined while at Great Meadow, in the court's opinion, that fact, does not render Sandin inapplicable.
II. Eighth Amendment
The court assumes for the sake of argument that plaintiffs claim that he was deprived of one hour daily exercise between February 12, 1987, and March 16, 1987, rises to the level of a constitutional deprivation based upon the Eighth Amendment. See Miles v. Bell, 621 F. Supp. 51, 63 (D.Conn. 1985) ("Many courts have recognized a constitutional right to physical exercise.") (and cases referenced therein.). Nevertheless, plaintiff Cody still cannot prevail on this claim because the record clearly establishes that the only remaining defendant, Everett Jones, a supervisory defendant, had no personal involvement in the alleged constitutional deprivation, which is a prerequisite to an award of damages under section 1983. See Colon v. Coughlin, 58 F.3d 865, 1995 U.S. App. LEXIS 16106, slip op. at 5247 (2nd Cir. 1995) (citations omitted). There is simply no evidence in the record that defendant Jones had requisite personal involvement based upon any of the five ways which the Second Circuit has recognized time and again as forming the basis for supervisory liability under section 1983. See id. at 5247 - 5248. Consequently, plaintiffs Eighth Amendment claims also fails.
Given the court's determinations that plaintiffs Fourteenth and Eighth Amendment claims are without merit, obviously there is no need for the court to consider defendant Jones's qualified immunity defense.
For the reasons set forth herein, the court hereby finds in favor of the defendant, Everett Jones, and against the plaintiff, William Cody, and hereby dismisses the complaint in its entirety. The Clerk of the Court is directed to enter judgment in accordance with this decision.
IT IS SO ORDERED.
DATED: July 27, 1995
Syracuse, New York
Neal P. McCurn
Senior U.S. District Judge