due process of law, in violation of the Fifth and Fourteenth Amendments. The defendants filed an initial motion to dismiss in 1993, supported by affidavits denying the truth of many of Benton's allegations; but the motion was denied by Judge Broderick (to whom the case was originally assigned) on the ground that it was more in the nature of a motion for summary judgment, and, as such, premature. See Memorandum Order filed February 24, 1994. The matter was then referred to Magistrate Judge Smith to conduct discovery. Recently, however, the defendants moved once again to dismiss the complaint, or, in the alternative, for summary judgment, on the basis of the Supreme Court's intervening decision in Sandin v. Conner, 132 L. Ed. 2d 418, 115 S. Ct. 2293 (1995).
Sandin was a § 1983 action by a prisoner claiming that, as a result of alleged inadequacies in a disciplinary hearing that resulted in his segregated confinement for thirty days, his liberty was denied without due process of law. 115 S. Ct. at 2295-96. The Court, however, found it unnecessary to assess the alleged inadequacies in the hearing, because it found that the petitioner had not been deprived of any protected liberty interest. Id. at 2302. Specifically, the Court held that any due process liberty interest created by prison regulations will generally be limited to freedom from such restraints as impose atypical and significant hardships on an inmate in relation to the ordinary incidents of prison life. Id. at 2301. Applying that standard, the Court found that a prisoner's segregated confinement for thirty days as discipline did not implicate any protected liberty interest created by prison regulations or by the due process clause in its own right. Id. at 2302.
Construing Benton's claims most favorably to plaintiff, they do not approach the restraints that the Court in Sandin found insufficient to implicate a protected liberty interest. Likewise, lower courts applying Sandin have had no difficulty in dismissing claims involving deprivations significantly greater than those imposed upon Benton. See, e.g., Hutchinson v. Adorno, No. 94-2652, 1995 U.S. App. LEXIS 39944, *4, 1995 WL 737493, at *2 (2d Cir. Dec. 13, 1995) (where it was "grossly obscure" whether prisoner was saying court should consider 71 or 10 day period as the "deprivation," held that under Sandin no liberty interest created); White v. Artiz, No. 94-4592, 1996 WL 84498, at *1 (S.D.N.Y. Feb. 27, 1996) (45 days in protective custody does not create a liberty interest); Hendricks v. C. Centanni, No. 92-5353, 1996 U.S. Dist. LEXIS 1662, *9, 1996 WL 67721, at *1, *3 (S.D.N.Y. Feb. 16, 1996) (thirty days in keeplock does not create a liberty interest); Rivera v. Coughlin, No. 92-3404, 1996 U.S. Dist. LEXIS 560, 1996 WL 22342 (S.D.N.Y. Jan. 22, 1996) (89 days in keeplock "do not constitute an atypical or significant hardship sufficient to create a liberty interest"); Arce v. Walker, 907 F. Supp. 658, 662 (W.D.N.Y. 1995) (19 days administrative confinement in special housing unit without daily exercise or opportunity to be heard not grounds for a claim under Sandin); Schmelzer v. Norfleet, 903 F. Supp. 632 (S.D.N.Y. 1995) (11 days in keeplock did not create liberty interest); Maguire v. Coughlin, 901 F. Supp. 101, 105 (N.D.N.Y. 1995) (granting summary judgment for defendant on § 1983 claim because plaintiff failed to demonstrate that the conditions of his segregated confinement were atypical and significant deprivation compared to ordinary incidents of prison life); Zamakshari v. Dvoskin, 899 F. Supp. 1097, 1105-06 (S.D.N.Y. 1995) ("several courts have applied Sandin to simply dismiss cases in which prisoners received 30 days or less of punitive segregation, holding that such segregation is not 'significant and atypical' deprivation.") (citations omitted); Uzzell v. Scully 893 F. Supp. 259, 263 (S.D.N.Y. 1995) (45 days in keeplock does not convey standing to bring § 1983 claim; implying keeplock never conveys standing no matter how long the confinement).
Accordingly, Benton's due process claims must fall.
There is also a suggestion in Benton's papers that his 9-day segregation constituted "cruel and unusual" punishment in violation of the Eighth and Fourteenth Amendments. The claim borders on the frivolous. Cf., Sostr ev. McGinnis, 442 F.2d 178, 192 (2d Cir. 1971) (en banc).
For the foregoing reasons, the complaint is dismissed, with prejudice, as to both defendants.
JED S. RAKOFF
Dated: White Plains, New York
March 28, 1996.