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ARCE v. WALKER

November 27, 1995

GEORGE ARCE, Plaintiff,
v.
HANS G. WALKER, et al, Defendants.



The opinion of the court was delivered by: LARIMER

 This action is brought pursuant to 42 U.S.C. ┬ž 1983. George Arce ("Arce"), a prisoner, asserts that his Due Process rights were violated when he was confined to the Special Housing Unit (SHU) for nineteen consecutive days without the opportunity for an informal hearing. He also asserts that his Due Process and 8th Amendment rights were violated when, except for one day, he was denied one hour of daily exercise outside his cell during this entire nineteen day period.

 BACKGROUND1

 This action arises out of plaintiff's "holdover" stay at Attica Correctional Facility in 1987. Previously a resident of the Clinton Correctional Facility, Arce was temporarily moved to Attica on December 22, 1987 so that he could attend court proceedings in Buffalo. He was returned to the Clinton facility on January 9th. During his nineteen day stay at Attica, Arce was confined to SHU. He claims that he was denied exercise privileges except for one day, December 28th.

 THE PARTIES' MOTIONS

 In his present motion, Arce asserts that the nineteen day SHU confinement without opportunity to be heard deprived him of a liberty interest conferred by the Due Process clause of the 14th Amendment. It is not his placement in SHU, per se, that Arce complains of, but rather that he was detained there for an extended period without a hearing of any kind. Arce asserts that he should have been entitled to at least an informal hearing within 7 to 10 days.

 Arce also asserts that the defendants' refusal to provide him daily exercise outside his cell deprived him of a liberty interest created by state regulation, specifically 7 NYCRR 301.5, which states that prisoners shall be "permitted to exercise outside [their] cell for at least one hour each day... ."

 Finally, Arce asserts that the exercise deprivation was cruel and unusual punishment in violation of the 8th Amendment.

 Defendants do not deny that Arce was confined to SHU during his stay at Attica. However, they assert that Arce's SHU assignment was an ordinary and required administrative procedure for "hold over" prisoners -- i.e., those individuals temporarily housed at another facility. The purpose for the SHU confinement was not punitive. The procedure was used because Attica officials do not have enough information about such transferred prisoners whose stay is typically of short duration to determine if they pose a danger to the prison community at large or would be in danger themselves from others in the community. Defendants contend that no liberty interest is implicated by this procedure.

 Defendants dispute Arce's factual allegations pertaining to the exercise deprivation claim. They assert that Arce was offered outdoor exercise every day, but refused to take it. Nonetheless, even if Arce's allegations were true, defendants assert that such actions would constitute neither a liberty interest deprivation nor a violation of the Arce's 8th Amendment rights. *fn2"

 DISCUSSION

 A. Summary Judgment Standards

 Summary judgment shall be granted if the pleadings and supplemental evidentiary materials "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). No genuine issue of material fact exists if "the record as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita ...


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