The opinion of the court was delivered by: THOMAS J. MCAVOY
This matter was referred to Magistrate Judge David N. Hurd for a Report-Recommendation pursuant to a Standing Order dated August 2, 1985. The Magistrate Judge's Report-Recommendation recommends that Defendants' Motion for Summary Judgment be granted because Plaintiff's claim lacks any genuine issue of material fact.
Plaintiff brings this action pursuant to 42 U.S.C. § 1983. He contends that his Fourteenth Amendment due process rights and his Eight Amendment right to be free from cruel and unusual punishment were violated when he was confined to keeplock without notice and an opportunity to be heard to contest his confinement. Defendants have moved for summary judgment on the ground that they are qualifiedly immune from suit.
Plaintiff was confined to keeplock on August 4, 1990 at Auburn Correctional Facility ("Auburn") one day after the fire bombing of another inmate's cell. Christopher Timmons, the inmate in that cell, suffered burns over 40 percent of his body. Dann Aff. at 3, P 7; Unusual Incident Report, 8/6/90, Exh. "A." Defendants allegedly placed Plaintiff in keeplock after receiving confidential information as to Plaintiff's involvement in the bombing. Exh. "G," P IV. Defendant Richards, as Day Watch Commander, directed the investigation of the bombing, see Dann Aff. at 3, P 7, and on August 8, 1990, after a four day delay in which Plaintiff remained in keeplock without the opportunity to contest his confinement, recommended that Plaintiff be placed in administrative segregation. Dann Aff. at 3-4, PP 8, 9; Administrative Segregation Recommendation Form, 8/8/90, Exh. "B."
Prior to the administrative segregation recommendation, Plaintiff was interviewed by Lieutenant A. Jackson. Dann Aff. at 4, P 9; Administrative/Protective Custody Interview Form, 8/9/90, Exh. "C." This was the first time Plaintiff was allowed to contest his confinement to keeplock since being so confined on August 4, 1990. On August 9, 1990, Plaintiff was served with an administrative segregation recommendation form, Dann Aff. at 4, P 9, and, upon permission, selected an employee assistant to aid in his defense. Dann Aff. at 4, P 11, Exh. "D." Plaintiff then remained in administrative keeplock until August 18, 1990, pursuant to N.Y. COMP. CODES R. & REGS. tit. 7, § 301.4(a) (1991).
During that time, defendants began processing his transfer from Auburn.
Defendants assert that Defendant Dann's receipt of sufficient information prompted the transfer in lieu of continued administrative segregation. Dann Aff. at 5, P 12; Program Security and Assessment Summary Form, 8/6/90, Exh. "G." Plaintiff was transferred into the general population at Clinton Correctional Facility on August 18, 1990. Dann Aff. at 5, P 14; see Program and Security Assessment Summary Form, 8/17/90, Exh. "H." Plaintiff then brought the instant civil rights action.
II. DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
A. Standard for Summary Judgment
According to Fed. R. Civ. P. 56(c) and 56(e), if there is "no genuine issue as to any material fact . . . the moving party is entitled to a judgment as a matter of law . . . where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." See Fed. R. Civ. P. 56(c), (e); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986), on remand, 807 F.2d 44 (3d Cir. 1986), cert. denied, 481 U.S. 1029, 107 S. Ct. 1955, 95 L. Ed. 527 (1987). The burden to demonstrate that no genuine issue of material fact exists falls solely on the moving party, Heyman v. Commerce and Indus. Ins. Co., 524 F.2d 1317 (2d Cir. 1975), and the trial court must resolve all ambiguities and draw all inferences in favor of that party against whom summary judgment is sought. Eastway Constr. Corp. v. New York, 762 F.2d 243, 249 (2d Cir. 1985), cert. denied, 484 U.S. 918, 98 L. Ed. 2d 226, 108 S. Ct. 269 (1987).
B. The Existence of a Constitutionally Protected Liberty Interest
1. Basis for Plaintiff's Fourteenth Amendment Claim
Plaintiff contends that New York's corrections regulation, N.Y. COMP. CODES R. & REGS. tit. 7, § 251-1.6 (1989), suffices to establish Plaintiff's liberty interest. Section 251-1.6(a) states that a guard may confine an inmate to his cell, room, or housing for administrative reasons
when "he represents an immediate threat to the safety, security or order of the facility," or presents a danger to others or property. ...