The opinion of the court was delivered by: MCAVOY
The Court returns to this matter upon defendants' motion for reconsideration in light of Sandin v. Conner, 132 L. Ed. 2d 418, 115 S. Ct. 2293 (1995). In its earlier order, the Court, inter alia, denied defendants' motion for summary judgment on behalf of Defendants Selsky and Mantello as to Mr. Delaney's Fourteenth Amendment due process claim for lack of adequate notice and opportunity to be heard. The Court also deferred judgment on Defendant Selsky and Mantello's qualified immunity claim.
A. Standard for Reconsideration
A court may justifiably reconsider its previous ruling if: (1) there is an intervening change in the controlling law; (2) new evidence not previously available comes to light; or (3) it becomes necessary to remedy a clear error of law or to prevent manifest injustice. Doe v. New York City Dep't of Soc. Servs., 709 F.2d 782, 789 (2d Cir.), cert. denied, 464 U.S. 864, 104 S. Ct. 195, 78 L. Ed. 2d 171 (1983). Defendants' motion for reconsideration relies on the first prong of this test, an intervening change in the law. Because the due process issues this case raises were on their way to trial when the Supreme Court decided Sandin, and because Sandin profoundly altered the standards for determining when prisoners suffer a deprivation of constitutionally-protected liberty interests, defendants' motion for reconsideration is hereby granted.
On October 15, 1990, the New York Department of Correctional Services ("DOCS") sanctioned Mr. Delaney in a Tier III hearing before Hearing Officer Koch. The sanction was 365 days in the Special Housing Unit ("SHU"). D's Ex. B. At the time of the hearing, Mr. Delaney was already in keeplock and had 197 days left to serve there. Hearing Officer Koch decided that Mr. Delaney's keeplock and SHU time should run concurrently. At the conclusion of a subsequent administrative review of the disciplinary hearing, Defendants Selsky and Mantello amended the penalty by ordering that Mr. Delaney serve the keeplock and SHU sentences consecutively. Defendant Mantello informed Mr. Delaney of this change on October 16, 1990, one day after the disciplinary hearing.
C. Plaintiff's Due Process Claim
Defendants' stipulated facts contain evidence that Defendants Selsky and Mantel reviewed and modified Mr. Delaney's sanction to his detriment without granting him prior notice or a hearing. See Defendants' Rule 10(j) Statement. Applying pre-Sandin case law, this Court concluded in its earlier order that Mr. Delaney had presented a genuine issue of material fact as to whether Defendants Selsky and Mantello extended his sentence to SHU in violation of his procedural due process rights. The Court must now consider whether the changes in due process law that Sandin effected require a different ruling on defendants' motion for summary judgment.
D. Summary Judgment Standard
Under Fed. R. Civ. Pro. 56(c), 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." 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. 2d 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. City of 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).