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MCALLISTER v. ZYDEL

May 29, 1996

REGGIE McALLISTER, Plaintiff,
v.
KENNETH ZYDEL and KEVIN KRUSCHEK, Defendants.



The opinion of the court was delivered by: LARIMER

 Plaintiff, Reggie McAllister, appearing pro se, commenced this action pursuant to 42 U.S.C. § 1983. Plaintiff, an inmate currently incarcerated at Green Haven Correctional Facility, seeks compensatory and punitive damages in connection with his fifteen-day confinement in keeplock status while he was an inmate of Attica Correctional Facility in 1992. Plaintiff has moved for summary judgment, and defendants have cross-moved for summary judgment.

 FACTUAL BACKGROUND

 Plaintiff alleges that on April 28, 1992, defendant Kevin Kruschke, *fn1" a Correction Officer, approached plaintiff in an Attica recreational yard and ordered him to return to his cell. McAllister asked what was wrong and Kruschke responded that McAllister had taken an unauthorized shower.

 McAllister returned to his housing unit, where defendant Kenneth Zydel, another Correction Officer, escorted him to McAllister's cell. Zydel then allegedly ordered the officer responsible for that area to put a keeplock tag on plaintiff's cell.

 No misbehavior report was issued, nor was a disciplinary hearing held concerning the alleged unauthorized shower. Plaintiff was released from keeplock on May 12, 1992.

 The day he was released, plaintiff filed an inmate grievance alleging that his keeplock confinement violated his due process rights because of defendants' failure to serve him with a misbehavior report or to hold a hearing in accordance with Department of Correctional Services procedures. After an investigation, the investigating sergeant concluded that McAllister had been erroneously held in keeplock and that he should not have lost any pay during his keeplock confinement.

 DISCUSSION

 At the outset, I note that plaintiff, in his papers in opposition to defendants' cross-motion, contends that there are genuine issues of material fact concerning the underlying events that preclude summary judgment in this case. That plaintiff would make such an assertion seems a bit odd, since plaintiff himself was the first party to move for summary judgment. At any rate, I do not believe that these alleged factual issues are of any significance in this case because, even assuming the truth of all of plaintiff's factual allegations, it is clear that defendants are entitled to summary judgment in light of the Supreme Court's decision in Sandin v. Conner, 132 L. Ed. 2d 418, U.S. , 115 S. Ct. 2293 (1995).

 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 ...


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