out of his cell and had unrestricted access to facility services, including the law library. Under Sandin, however, this Court must compare the conditions of Scott's disciplinary confinement in the SHU to the conditions of confinement of inmates held in the SHU for non-disciplinary reasons in order to determine whether Scott's confinement constitutes an "atypical and significant hardship."
New York prison regulations provide that inmates may be placed in the SHU for disciplinary confinement, detention, administrative segregation, protective custody, keeplock confinement, and "for any other reason, with the approval of the deputy commissioner for facility operations." 7 N.Y.C.R.R. §§ 301.1 - 301.7. All inmates housed in the A2-SHU under this provision, regardless of the reason for their segregation, are subject to the restrictions on privileges described by Scott.
Thus, while Scott's segregation in the A2-SHU limited the freedom he enjoyed in the general population at Green Haven, his confinement "did not exceed similar, but totally discretionary confinement in . . . degree of restriction." Sandin, 115 S. Ct. at 2301.
Scott further argues that because he spent two months in disciplinary segregation while the plaintiff in Sandin was confined to the SHU for only 30 days, this Court cannot determine as a matter of law that Scott's segregation did not amount to an "atypical and significant hardship." The relevant consideration before this Court, however, is whether the duration of Scott's segregated confinement differs materially from the length of the terms served by inmates in the A2-SHU for reasons other than discipline. See Rosario v. Selsky, 1996 U.S. Dist. LEXIS 11431, 94 Civ. 6872, 1995 WL 764178, at *5 (S.D.N.Y. Dec. 28, 1995). In New York, an inmate may be placed in the SHU "for such period as may be necessary for maintenance of order or discipline." 7 N.Y.C.R.R. § 301.7. Prison regulations provide no limits on the duration of SHU time that can be imposed on a prisoner at a Tier III hearing for either disciplinary or administrative reasons, and in fact, lengthy terms of confinement in the SHU are common. Thus, while Scott spent more time in segregated confinement than did the plaintiff in Sandin, there is no evidence that Scott's confinement improperly "exceeded similar, but totally discretionary confinement in . . . duration." Sandin, 115 S. Ct. at 2301.
Moreover, the Court in Sandin suggested that whether the duration of segregated confinement constituted an atypical and significant hardship depended not only on the length of confinement, but also on what percentage of the inmate's total sentence that confinement represented. See Rosario, 1996 U.S. Dist. LEXIS 11431, 1995 WL 764178, at *5. In light of the fact that Scott has been incarcerated since 1984, the time he spent in the A2-SHU represents an insignificant proportion of his time under sentence, and thus cannot be characterized as "a major disruption in his environment." Sandin, 115 S. Ct. at 2301; see also Santana v. Keane, 1996 U.S. Dist. LEXIS 11431, No. 90 Civ. 6309, 1996 WL 465751, at *5 (S.D.N.Y. Aug. 14, 1996); Rosario, 1996 U.S. Dist. LEXIS 11431, 1995 WL 764178, at *5.
Following Sandin, many district courts within the Second Circuit have held as a matter of law that confinements similar to or more restrictive than Scott's 60-day confinement in the A2-SHU do not constitute an "atypical or significant hardship" implicating a constitutionally protected liberty interest. See, e.g., Frazier v. Coughlin, 81 F.3d 313, 317-18 (2d Cir. 1996) (12 days in SHU is not a "significant deprivation of a liberty interest"); Webb v. Artuz, 1996 U.S. Dist. LEXIS 11431, No. 93 Civ. 5985, 1996 WL 452260, at *4 (S.D.N.Y. Aug. 8, 1996) (45 days in keeplock does not create a liberty interest of "real substance"); Trice v. Clark, 1996 U.S. Dist. LEXIS 6644, 94 Civ. 6871, 1996 WL 257578, at *3 (S.D.N.Y. May 16, 1996) (150 days in SHU does not amount to a constitutional violation); Arce v. Coughlin, 1996 U.S. Dist. LEXIS 6498, 93 Civ. 4702, 1996 WL 252371, at *7 (S.D.N.Y. May 14, 1996) (120 days in SHU during 22 year term of imprisonment was not an "atypical and significant hardship"); Rivera v. Coughlin, 1996 U.S. Dist. LEXIS 560, 92 Civ. 3404, 1996 WL 22342, at *5 (S.D.N.Y. Jan. 22, 1996) (89 days in keeplock does not constitute an "atypical or significant hardship"); Uzzell v. Scully, 893 F. Supp. 259, 263 (S.D.N.Y. 1995) (45 days in keeplock does not give rise to a § 1983 claim); Rosario, 1996 U.S. Dist. LEXIS 11431, 1995 WL 764178, at *5 (85 days in SHU does not impose an "atypical and significant hardship"). But see Bishop v. Keane, 1995 U.S. Dist. LEXIS 8882, 92 Civ. 6061, 1995 WL 384443, at *3 n.4 (S.D.N.Y. June 28, 1995) (whether 87 days in keeplock imposes an "atypical or significant hardship" is a question of fact); Zamakshari v. Dvoskin, 899 F. Supp. 1097, 1106 (S.D.N.Y. 1995) (two years in SHU and loss of good time credit constitutes a protected liberty interest); Lee v. Coughlin, 902 F. Supp. 424, 431 (S.D.N.Y. 1995) (376 days in SHU violated a protected liberty interest). Because his 60-day confinement in the A2-SHU does not amount to an "atypical or significant hardship," Scott has no protected liberty interest in freedom from that confinement, and thus is not entitled to the procedural protections set forth in Wolff.
Since Scott has failed as a matter of law to establish a due process claim, defendants are entitled to summary judgment. In view of this conclusion, the Court need not consider defendants' other arguments in support of their motion for summary judgment.
B. All Other Pending Motions
Because Sandin is dispositive of all of the claims remaining in this action, defendants are entitled to summary judgment. Accordingly, this Court declines to address the arguments in support of defendants' motion to amend their answer and plaintiff's motion for partial summary judgment, and both motions are denied as moot.
For the foregoing reasons, plaintiff's motion to amend his complaint to add Selsky as a defendant is granted, defendants' motion for summary judgment is granted, and the amended complaint is dismissed. Defendants' motion to amend their answer and plaintiff's motion for summary judgment are denied as moot.
It is so ordered.
Dated: New York, New York
October 23, 1996
Robert J. Ward