confinement in a Special Housing Unit ("SHU"). The Court said that state regulations can create a liberty interest only where a restraint imposes "atypical and significant hardship on an inmate in relation to the ordinary incidents of prison life." 115 S. Ct. at 2300.
Prior to Sandin, the question of whether a state regulation created a liberty interest depended on whether the language of the regulation was "of an unmistakably mandatory character" as opposed to a mere "procedural guideline." Id. at 2298 (citing Hewitt v. Helms, 459 U.S. 460, 74 L. Ed. 2d 675, 103 S. Ct. 864 (1983)). In other words, a regulation could give rise to a liberty interest if it used words such as "shall" or "must," indicating that particular procedures had to be followed. See Rodriguez v. Phillips, 66 F.3d 470, 479 (2d Cir. 1995).
The Sandin Court shifted the focus away from the mandatory nature of state statutes or regulations to the "nature of the deprivation." Under Sandin, the important question now is whether the deprivation constitutes a significant departure from ordinary prison conditions. Sandin, 115 S. Ct. at 2295; Arce v. Walker, 907 F. Supp. 658, 661 (W.D.N.Y. 1995); Malsh v. Austin, 901 F. Supp. 757, 761 (S.D.N.Y. 1995).
The Court in Sandin acknowledged that there could be some limited circumstances in which the Due Process Clause creates a liberty interest in avoiding certain prison conditions that might result in exceeding the original sentence or which are "qualitatively different" from ordinary prison conditions and have "stigmatizing consequences." Sandin, 115 S. Ct. at 2297. Citing cases in which a prisoner was involuntarily transferred to a mental hospital for treatment of a mental disease (see Vitek v. Jones, 445 U.S. 480, 63 L. Ed. 2d 552, 100 S. Ct. 1254 (1980)) or involuntarily given psychotropic drugs (see Washington v. Harper, 494 U.S. 210, 108 L. Ed. 2d 178, 110 S. Ct. 1028 (1990)), the Court said that certain liberty interests can be impinged regardless of state regulations. However, the Court clearly did not consider thirty days of punitive SHU confinement to rise to that level. On the facts before it, the Court concluded that neither the prison regulation in question nor the Due Process Clause gave the plaintiff a protected liberty interest that would entitle him to the procedural protections set forth in Wolff v. McDonnell, 418 U.S. 539, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974). Sandin, 115 S. Ct. at 2301.
Based on the principles enunciated in Sandin, I find that plaintiff's confinement in keeplock status did not deprive him of a liberty interest protected by the Due Process Clause. McAllister's confinement did not "exceed [his] sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force," id. at 2299, nor did it "impose 'atypical and significant hardship on [McAllister] in relation to the ordinary incidents of prison life.'" Carter v. Carriero, 905 F. Supp. 99, 104 (W.D.N.Y. 1995).
Although the length of an inmate's keeplock or SHU confinement is not dispositive of whether a liberty interest is implicated, Brooks v. DiFasi, 1995 U.S. Dist. LEXIS 19616, No. 93- CV-197E, 1995 WL 780976 *5 (W.D.N.Y. Dec. 29, 1995), it should be noted that McAllister's confinement was only half as long as the plaintiff's in Sandin. In addition, numerous cases from this circuit have dismissed due process claims in cases involving penalties far lengthier than McAllister's confinement. See, e.g., Rivera v. Coughlin, 1996 U.S. Dist. LEXIS 560, No. 92 Civ. 3404, 1996 WL 22342 (S.D.N.Y. Jan. 22, 1996) (89 days in keeplock); Brooks, 1995 U.S. Dist. LEXIS 19616, 1995 WL 780976 *5 (180 days in SHU); Tulloch v. Coughlin, 1995 U.S. Dist. LEXIS 19624, No. 91- CV-211E, 1995 WL 780970 *2 (180 days in SHU); Rosario v. Selsky, 1995 U.S. Dist. LEXIS 19175, No. 94 Civ. 6872, 1995 WL 764243 (S.D.N.Y. Dec. 26, 1995) (85 days in SHU); Arce, 907 F. Supp. at 662 (19 days in SHU); McMiller v. Wolf, 1995 U.S. Dist. LEXIS 13026, No. 94- CV-623E, 1995 WL 529620 *1-3 (W.D.N.Y. Aug. 28, 1995) (183 days in SHU); Carter, 905 F. Supp. at 104 (270 days in SHU). I agree with the reasoning of these cases and find that plaintiff's confinement was not an "atypical and significant hardship" so as to give rise to the due process protections to which plaintiff claims he was entitled.
In addition, "the Supreme Court in Sandin suggested that the degree of hardship is partly a function of the length of time spent in segregated confinement as a percentage of the inmate's total sentence." Rosario, 1995 U.S. Dist. LEXIS 19175, 1995 WL 764178 *5 (citing Sandin, 115 S. Ct. at 2302). In Rosario, the court noted that the plaintiff's prisoner number, 85-B-1195, indicated that he had been incarcerated since 1985, meaning that he had been in prison for over ten years at the time the court issued its decision. The three months' confinement in SHU at issue in Rosario, the court observed, thus represented a very small portion of the plaintiff's total sentence.
That reasoning applies with equal, if not greater, force in the case at bar. McAllister's New York inmate number, 89-A-7685, indicates that his incarceration commenced in 1989. Since plaintiff has been incarcerated for some seven years, then, the fifteen days that he spent in keeplock is an even smaller fraction of his overall sentence than was the penalty in Rosario.
Plaintiff's motion for summary judgment (Item 27) is denied. Defendants' cross-motion for summary judgment (Item 33) is granted, and the complaint is dismissed.
IT IS SO ORDERED.
DAVID G. LARIMER
UNITED STATES DISTRICT COURT
Dated: Rochester, New York
May 29, 1996.