(N.D.N.Y. July 5, 1996)(instead of length of time, the central question when analyzing an SHU sentence is whether such 'discipline by prison officials falls within the expected parameters of the sentence imposed by the court of law.'")(citing Brown v. McClellan, 1996 U.S. Dist. LEXIS 8164, 1996 WL 328209, *4 (W.D.N.Y. June 11, 1996).
Post-Sandin cases from this Circuit have dismissed due process claims in cases involving penalties comparable to the one imposed in the case at bar. See, e.g., Brooks, supra, at *5 (365 days sentenced, 180 days served in SHU); Tulloch v. Coughlin, 1995 U.S. Dist. LEXIS 19624, No. 91- CV-211E, 1995 WL 780970, *2 (W.D.N.Y. Dec. 22, 1995), app. dismissed, F.3d , 1996 U.S. App. LEXIS 18567, No. 96-2068 (2d Cir. 1996)(180 days sentenced and served 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)(365 days sentenced, 183 days served in SHU); Carter, supra, at 104 (360 days sentenced, 270 days served in SHU); Polanco v. Allan, 1996 U.S. Dist. LEXIS 6329, No. 93- CV-1498, 1996 WL 250237, *3 (N.D.N.Y. May 6, 1996)(365 days sentenced and served in SHU). Indeed, one court recently has stated "it now appears that any period of segregation of one year or less affords no protected liberty interest." Polanco, supra, at *3, recons, denied, 1996 U.S. Dist. LEXIS 9385, 1996 WL 377074 *2 (N.D.N.Y. July 5, 1996)("the general rule of a year or less seems appropriate, absent extraordinary circumstances"); but see Lee v. Coughlin, 902 F. Supp. 424 (S.D.N.Y. 1995)(court was "hard pressed to believe" that 376 days confinement would not constitute "atypical and significant hardship"), recons, granted, 914 F. Supp. 1004 (S.D.N.Y. 1996).
Nor do I find significant Jones' claim that his confinement was atypical because he was denied telephone privileges. As noted in Tulloch, supra, at *2, "disciplinary segregation in New York mirrors, with insignificant exceptions, the conditions of administrative segregation and protective custody." See also Rosario v. Selsky, 1995 U.S. Dist. LEXIS 19175, 94-C V-6872, 1995 WL 764178, *5 (S.D.N.Y. 1995)("the restrictions on privileges [in NYCRR Title 7, § 301.1 - 301.7] apply almost equally to all inmates in the SHU"). To the extent any difference in telephone privileges exists between punitive and nonpunitive SHU confinement, I find it to be a minor distinction. See Sandin, supra, at 2997 n. 4 (no liberty interest implicated in prison context unless confinement is "qualitatively different" from typical punishment and has "stigmatizing consequences"); see also Frazier v. Coughlin, 81 F.3d 313 (2d Cir. 1996)(where inmate's SHU confinement was not dramatically different from the 'basic conditions of [his] indeterminate sentence")(citing Sandin).
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, supra, at *5 (citing Sandin, supra, 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 even greater force in the case at bar. Jones' inmate number, 75-A-2259, indicates that he has been incarcerated since 1975 -- at least twenty one years to date. The 191 days that he spent in SHU (or for that matter, the 730 days to which he was originally sentenced) as a result of the hearing before Dixon is thus a small fraction of his total sentence of incarceration.
Accordingly, for all the above reasons, I 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.
Defendant's motion for summary judgment (Docket 27) is granted, and the complaint is dismissed with prejudice. Jones' cross-motion for summary judgment (Docket 32) is denied.
IT IS SO ORDERED.
DAVID G. LARIMER
UNITED STATES DISTRICT COURT
Dated: Rochester, New York
August 26, 1996.