The opinion of the court was delivered by: LARIMER
Plaintiff Andre Aleek Jones, an inmate in the custody of the New York State Department of Correctional Services, brings this action pursuant to 42 U.S.C. § 1983. The complaint alleges that defendants Walter Kelly (Superintendent of Attica Correctional Facility) and T. Dixon (a hearing officer), violated Jones' procedural due process rights during a Tier III disciplinary hearing in June 1990. Specifically, Jones alleges that the defendants refused his requests to call witnesses, denied him effective "employee assistance," and failed to assess the reliability of a confidential informant. Jones was found guilty of the violations that were the subject of the hearing. As punishment, he was sentenced to 730 days in the Special Housing Unit ("SHU") at Attica, without telephone privileges.
Jones subsequently brought this action, as well as an Article 78 proceeding in New York state court, challenging his SHU confinement. The Article 78 proceeding settled, and in accordance with the settlement terms Jones was released from SHU in December 1990 and all charges expunged from his institutional record. Thus, Jones was released from SHU confinement after serving 191 days of his 730 day sentence.
In this action, defendants now move for summary judgment. Relying on Sandin v. Conner, U.S. , 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995), they assert that Jones had no liberty interest in remaining in the general prison population and, thus, his 191 day SHU confinement did not constitute any constitutional deprivation. Defendants assert that because SHU confinement (for either administrative or punitive reasons) is a normal incident of prison life, it does not constitute an "atypical and significant hardship" in relation to ordinary prison life. The duration of the confinement, assert defendants, is irrelevant.
Jones opposes and cross-moves, asserting that his case is distinguishable from Sandin because the duration of confinement originally imposed (730 days) is so much greater than the 30 days at issue in Sandin, and because his confinement was different from administrative confinement because he was denied telephone privileges.
In Sandin v. Conner, the Supreme Court held that neither Hawaii state regulations nor the Due Process Clause created a liberty interest for a prisoner in avoiding thirty days' disciplinary confinement in 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 decision 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 did acknowledge 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. Thus, on the facts before it, the Court concluded that neither the prison regulations 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, supra, at 2301.
Guided herein by Sandin, I find that Jones' SHU confinement did not deprive him of a liberty interest protected by the Due Process Clause or by New York prison regulations. Jones' confinement did not "exceed the sentence in such an unexpected manner as to give rise to protection by the Due Process clause of its own force." 115 S. Ct. at 2299. Nor was Jones' confinement an "atypical and significant hardship" constituting a significant departure from ordinary prison conditions. Id. at 2295, 2300.
Jones attempts to distinguish Sandin on the ground that he was confined significantly longer (191 days) than the plaintiff in Sandin (30 days), and because he lost telephone privileges during his confinement. I am not persuaded by these arguments.
The length of SHU confinement is not necessarily dispositive of whether a liberty interest is implicated. Under New York's prison regulations inmates may be confined in SHU for extended periods for both punitive and non-punitive reasons. See Brooks v. DiFasi, No. 93- CV- 197E, 1995 WL 780976, *5 (W.D.N.Y. Dec. 29, 1995). Indeed, inmates may be confined to SHU for disciplinary, administrative, protective, detention, or "any other reason" approved by the deputy commissioner. Carter v. Carriero, 905 F. Supp. 99, 103 (W.D.N.Y. 1995)(citing 7 N.Y.C.R.R. § 301.1-.7). Thus, "SHU confinement in New York does not impose 'atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.'" Id. at 104 (citing Sandin). See also Polanco v. Allan, 1996 U.S. Dist. LEXIS 9385, No. 93- CV-1498, 1996 WL 377074 (N.D.N.Y. July 5, 1996)(instead of length of time, the central question when analyzing an SHU ...