unlimited loss of good time in his Tier III hearing, he had a liberty interest. Moreover, based on Walker and Black, I find that the subsequent administrative reversal of Justice's conviction did not retroactively invalidate his liberty interest because he served a substantial portion of his SHU sentence.
As noted previously, McCann and McKinnon require that I look to the potential penalty absent any conflict with Sandin. See McCann, 698 F.2d at 121; McKinnon, 568 F.2d at 939. Sandin contains no discussion of whether the potential or actual penalty imposed on a prisoner should be the benchmark for defining a liberty interest. Because the actual penalty the prisoner received was the same as the maximum penalty he faced in Sandin, it is not possible to infer from the court's holding that it adopted either approach. Sandin, 115 S. Ct. at 2296 n. 1. However Wolff, a decision that the Sandin court reaffirmed, premised its procedural requirements on the penalty a class of prisoners faced rather than the actual penalty any one prisoner received. See Wolff, 418 U.S. at 553. Finally, an actual penalty analysis is unworkable. Assuming that certain penalties that a corrections official might impose in a Tier III hearing -- for example ten years in the SHU -- would be an "atypical and significant deprivation" within the meaning of Sandin, the official would have to determine the sentence before determining whether the inmate was entitled to procedural protections.
However, those district courts that have premised their rejection of due process challenges on the similarity in conditions faced by inmates in disciplinary confinement in the SHU and those placed in the SHU for administrative confinement, pre-hearing detention, or protective custody would not necessarily agree that an extremely long sentence in the SHU would implicate a liberty interest. I do not adopt their approach for several reasons. First, Sandin compared the conditions of inmates in disciplinary confinement both to those of inmates in administrative segregation and protective custody and to those of inmates in the general population. Sandin, 115 S. Ct. at 2301. Second, while the Sandin court relied in part on the similarity of conditions between inmates in disciplinary confinement in the SHU and inmates in administrative confinement, it also emphasized that "the State's actions in placing [Conner in the SHU] for 30 days did not work a major disruption in his environment." Id. (emphasis added). Finally, the Sandin court characterized administrative and protective custody in Hawaii as "totally discretionary." Id. Similar admissions in New York are not totally discretionary. Sec N.Y. Comp. Codes R. & Regs. tit. 7, § 301.3 (setting standards for detention admissions); id., § 301.4 (setting standards and mandating review procedures for administrative segregation admissions); id., § 330.3(b) (mandating hearing within fourteen days for involuntary protective custody). Although Sandin may well cause the Second Circuit to reconsider its position that confinements such as administrative segregation implicate a liberty interest, see Rodriguez, 66 F.3d at 480, these confinements would still not be totally discretionary under New York law. Therefore, the relevant comparison for Sandin purposes in New York is between inmates in the SHU for disciplinary purposes and inmates in the general population.
I note that certain courts have held that retroactive restoral of good time and reversal of an administrative sentence removes the liberty interest that would otherwise be present. If the inmate spends no time in the SHU, this approach may be valid. Compare Young, 970 F.2d at 1156, with Walker, 23 F.3d at 658-59. However, Justice began his sentence and served more than three months before he was released. Therefore, he lost a liberty interest. Walker, 23 F.3d at 658-59.
Whether Justice lost this liberty interest in violation of procedural guarantees mandated by the Due Process Clause remains for resolution at trial. Neither party has provided the record of the hearing that resulted in Justice's confinement in the SHU. Justice's penalty was reversed because of failure by his assistant to make contact with a potential witness prior to the trial and the hearing officer's refusal of documentary evidence concerning staff harassment. Dkt. No. 45, Ex. A at 10. Prisons have a constitutional obligation to provide assistance to an inmate facing disciplinary charges particularly if that inmate is confined in the SHU and thus unable to marshal evidence himself. Eng v. Coughlin, 858 F.2d 889, 897 (2d Cir. 1988). However, it is not clear from the record before me now that the assistant's failure to contact a witness fell below the minimally acceptable level for assistance or that Justice was unable to properly present his claim concerning Vann's retaliatory motive without the documents the hearing officer refused. Nor is the contrary proposition evident from the current record. Not every breach of prison regulations concerning hearings constitutes a due process violation. See Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995). Therefore, both parties' summary judgment motions on plaintiff's due process claim must be denied.
V. Eighth Amendment
The basis of Justice's Eighth Amendment claim is not entirely clear. He alleges that all of the defendants' actions described in paragraphs four through thirty-two of his complaint violated the Eighth Amendment. Compl. P 34. These actions include various defendants' alleged interference in Justice's right to file grievances and/or court actions, withholding of extra clothing or blankets, alleged retaliation, Justice's confinement in the SHU, and his transfer to a maximum security facility despite his claim that he was entitled to housing in a medium security facility. Liberally interpreting Justice's complaint, the magistrate judge also found that Justice complained of a failure by defendants to safeguard him from harm by other inmates. Report-Recommendation at 10-14.
The magistrate judge correctly found that Justice failed to allege a sufficient factual predicate for his Eighth Amendment claim.
The Eighth Amendment requires prisons to "ensure that inmates receive adequate food, clothing, shelter and medical care, and ... 'take reasonable measures to guarantee the safety of the inmates.'" Farmer v. Brennan, 511 U.S. 825, 114 S. Ct. 1970, 1976, 128 L. Ed. 2d 811 (1994) (quoting Hudson v. Palmer, 468 U.S. 517, 526-527, 82 L. Ed. 2d 393, 104 S. Ct. 3194 (1984)). In order to prevail on a conditions claim, the inmate must show that prison officials acted with deliberate indifference to one of these basic human needs. Wilson v. Seiter, 501 U.S. 294, 303, 115 L. Ed. 2d 271, 111 S. Ct. 2321 (1991). In a medical indifference claim, the inmate must also show that the condition of which he complains "'may produce death, degeneration, or extreme pain.'" Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994) (quoting Nance v. Kelly, 912 F.2d 605, 607 (2d Cir. 1990) (Pratt, J., dissenting)), cert. denied, 115 S. Ct. 1108 (1995)).
As noted previously, Justice made only two submissions in competent evidentiary form: a declaration in support of his own summary judgment motion ("Justice Decl."), and a subsequent declaration in opposition to the defendants' summary judgment motion ("2d Justice Decl."). These documents contain the following conditions complaints: (1) Justice complained to defendant Coughlin concerning lack of adequate heat and clothing, Justice Decl. P 3; (2) a bucket of water was thrown in his cell, id. P 8; (3) defendant Gilbert turned off Justice's water and lights for seventy-two hours, and Justice had a hard time getting them restored, id. P 13; (4) despite Justice's claim that he was entitled to be housed in a medium security facility, he was transferred to a maximum security facility, id. P 20(4) Justice is "victim prone" and has a "high profile," 2d Justice Decl. P 11; (6) the prison system's heater is faulty and excessively cold in the winter, id. P 12, and (7) Justice has a "medical" for long underwear and blankets, but the prison nurse refused to advise authorities of his need, id. In addition, Justice submitted exhibits demonstrating that he attempted to call his medical need to defendants in positions of authority. See, e.g., Dkt. No. 35, Exs. 7-9. Justice also claimed that he had grievance decisions documenting his need for these items in his possession. Id. Ex. 11. However, Justice did not include the decisions in his voluminous submissions to this court. Justice also conceded that he received a pair of long underwear but complained that he did not receive a second pair or an extra blanket. Id., Ex. 19.
Justice's sworn allegations are far too conclusory to meet the stringent requirements for an Eighth Amendment claim. He never identifies the condition from which he purportedly suffered. Nor does he produce the documentation that he allegedly has concerning this condition.
Justice also makes no claim that another inmate ever actually harmed him or threatened to harm him. Justice has not offered any proof that the defendants "completely disregarded" his safety or indeed that they failed to protect him from other inmates at all. See Jones v. Kelly, 918 F. Supp. 74, 80 (W.D.N.Y. 1995) (quoting Smith v. Fiedler, 867 F. Supp. 832, 835 (E.D. Wis. 1994), aff'd, 68 F.3d 477 (7th Cir. 1995)).
Nor does Justice make any specific factual allegations indicating that conditions in the SHU deprived him of any of the basic necessities of life. While arguing that the prison was too cold, he does not indicate how cold or describe the effect of the cold on his medical condition in any competent form.
Finally, Justice has not put forth any factual allegations demonstrating that conditions in the maximum security prison to which he was transferred constituted cruel and unusual treatment. Prisons may generally transfer prisoners to institutions with less favorable conditions without constitutional constraint. Meachum 427 U.S. at 216 (Due Process Clause does not mandate hearings prior to such transfers). Therefore, absent allegations that conditions at the second institution constituted cruel and unusual punishment, Justice cannot prove that his transfer violated the Constitution.
In addition to alleging that the defendants violated his rights under the First, Eighth, and Fourteenth Amendments Justice also claims that certain of the defendants entered into a conspiracy to violate his constitutional rights and therefore violated 42 U.S.C. § 1985(3). The magistrate judge correctly found that because Justice did not allege any race or other class-based animus, Section 1985(3) was an inappropriate vehicle for his complaints. See Graham v. Henderson, 89 F.3d at 82. Therefore, I must dismiss Justice's conspiracy claims.
VII. Assigned Counsel Request
I deny Justice's renewed request for pro bono representation for substantially the same reasons stated by Magistrate Judge Scanlon in his Order of February 17, 1995, dkt. no. 28, which I affirmed on April 25, 1995, dkt. no. 33.
It is therefore
ORDERED that the report-recommendation is approved in part and disapproved in part, as set forth herein, and it is further
ORDERED that plaintiff's motion for summary judgment is denied; plaintiff's renewed request for assigned counsel is denied without prejudice to renewal when a trial date has been set; and defendants' request for summary judgment is granted to the extent that I grant summary judgment dismissing all of plaintiff's claims except those against Hayden and Selsky which allege plaintiff's Fourteenth Amendment claim of procedural improprieties in a disciplinary hearing.
Dated: October 15, 1996
Syracuse, New York
ROSEMARY S. POOLER
District Court Judge