his confinement "did not exceed similar, but totally discretionary confinement in either duration or degree of restriction." Id. Finding that no liberty interests were implicated, the court dismissed plaintiff's claim.
In Frazier v. Coughlin, 81 F.3d 313 (2d Cir. 1996), the Second Circuit applied Sandin to disciplinary confinements within New York's prison system. The court explained that to prevail under Sandin, an inmate "must establish both that the confinement or restriction creates an 'atypical and significant hardship' . . . and that the state has granted its inmates, by regulation or by statute, a protected liberty interest in remaining free from that confinement." Id. at 317. The periods of confinement at issue in Frazier were ten days of prehearing confinement in SHU and approximately eleven months in the Close Supervision Unit ("CSU"). Although confinement in CSU is less restrictive than in SHU, prisoners in CSU are denied privileges available to inmates in the general population. The Frazier court found that under the standards of Sandin, the plaintiff failed to demonstrate a significant deprivation of a liberty interest because he did not show that the conditions of confinement in either SHU or CSU imposed on him an atypical and significant hardship in relation to the ordinary incidents of prison life. Id. at 317-18. Because it found that the inmate had not suffered the requisite hardship, the court did not address the question of whether New York State has granted its inmates, by regulation or by statute, a protected liberty interest in remaining free of confinement in SHU or CSU.
The decision in Frazier was reached following a bench trial where the District Court was able to conduct extensive fact finding. During the trial, the court heard evidence regarding the nature of the plaintiff's confinement in SHU and CSU as compared to confinement in the general population. The court did not directly address the question of whether such a detailed factual showing is required before Sandin can be applied. That a trial was held in that case does not mean that one must be held in all cases.
Other courts have applied Sandin and dismissed plaintiffs' complaints without going to trial. In Carter v. Carriero, 905 F. Supp. 99 (W.D.N.Y. 1995), the court granted the defendant's motion for summary judgment with regards to the issue of whether the plaintiff had a protected liberty interest in not being assigned to SHU. The inmate in Carter served 270 days in SHU following a disciplinary hearing. The court noted that under New York prison regulations, inmates can be placed in 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." Carter, 905 F. Supp. at 103 (citing 7 N.Y.C.R.R. §§ 301.1-7). The court found that neither the restrictions on privileges available to inmates in SHU nor the duration of the confinement in question imposed an atypical and significant hardship in relation to the ordinary incidents of prison life. Id., at 104. The court also held that "neither the New York prison regulations nor the Due Process Clause itself afforded plaintiff a protected liberty interest that would entitle him to the procedural protections he claims defendant violated." Id.
In the present case, plaintiff claims that he had a protected liberty interest in remaining in the Orleans general population and that his disciplinary hearing was constitutionally infirm. He spent a total of seventy-four days in SHU before his punishment was reversed on appeal (nine days before the completion of his hearing and sixty-five days following the determination). In his complaint, plaintiff specifically alleges that he was limited to one hour of recreation a day, that he was denied a meal on one occasion, and that he was denied medical treatment on three occasions. Item 1, PP 8-9. He also alleges that some of his personal property was withheld for a number of days. Id., P 3. Defendant's supporting affidavit describes in detail the nature of the plaintiff's confinement in SHU and plaintiff has failed to challenge this evidence. Item 13. The affidavit establishes that it is not at all unusual for inmates to spend lengthy periods of time in SHUs for disciplinary reasons. Id., P 12. The affidavit also compares the restrictions experienced by inmates in SHU as compared to inmates in the general population.
In Carter, the court found that the SHU restrictions on law library access, educational opportunities, visitation, telephone use, personal property, employment eligibility, work release, and furloughs did not amount to atypical and significant hardship, even when the inmate was confined to SHU for 270 days. Carter, 905 F. Supp. at 105. The plaintiff in this case has not plead comparable restrictions on privileges. If Carriero's 270 days in SHU were found not to be dramatically different from the ordinary incidents of prison life, the court cannot see how the seventy-four days endured by the plaintiff in this case could implicate a protected liberty interest. In Frazier, the court found that twelve days in SHU and approximately eleven months in CSU did not amount to a sufficient hardship to implicate a protected liberty interest. Frazier, 81 F.3d at 317. Even though the latter confinement was less restrictive than SHU, the eleven months of confinement was considerably more than the seventy-four days experienced by the plaintiff in this case. Finally, as was the case in Sandin, the state of New York expunged plaintiff's disciplinary record following the reversal of the misconduct determination. The Supreme Court's opinion suggests that such an internal remedial measure reduces the harshness of the original disciplinary action.
Having found no protected liberty interest, this court does not consider whether plaintiff has a claim based on defendant's failure to provide adequate process at the disciplinary hearing. The court notes that after Sandin and Frazier, the appropriate remedy for violation of hearing regulations, where the result is not an atypical, significant hardship, is a question for the state courts.
II. Equal Protection Claim
In order to succeed on his Eighth Amendment claim, plaintiff must prove that the conditions of confinement can properly be termed "barbarous" or "shocking to the conscience." Sostre v. McGinnis, 442 F.2d 178, 191 (2d Cir. 1971), cert. denied, 404 U.S. 1049 (1972). Segregated confinement does not itself violate the Eighth Amendment. Id. at 192. The Sostre court found that the plaintiff's confinement in a punitive segregation facility for twelve months and eight days, in which he was isolated from human conduct, severely restricted in opportunities for exercise, limited to one shower per week, restricted from buying books, magazines or newspapers, limited in his access to the prison library, restricted in the ability to receive food packages from the outside, and limited at meals to only one portion of food and a different dessert than that given to the general population, did not violate basic human dignity. The court also found that it should not second-guess the prison authorities on their judgment that the punishment was a reasonable means of maintaining discipline and order. Id. at 191.
In Farmer v. Brennan, 511 U.S. 825, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994), the Supreme Court explained that there are two prerequisites for an Eighth Amendment violation.
First, the deprivation alleged must be, objectively, "sufficiently serious," . . . a prison official's act or omission must result in the denial of "the minimal civilized measure of life's necessities" . . . . The inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm. . . . [Second,] a prison official must have a "sufficiently culpable state of mind." . . . In prison-conditions cases that state of mind is one of "deliberate indifference" to inmate health or safety.
114 S. Ct. at 1977. In order for deliberate indifference to be found, the official must have "known of and disregarded an excessive risk to inmate health or safety; the official must [have] been aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must [have] drawn the inference." Id. at 1979.
Under either Farmer or Sostre, plaintiff's Eighth Amendment claim fails. Plaintiff has not alleged facts that would support the conclusion that the conditions in the Orleans SHU were sufficiently barbarous or that there was a substantial risk of serious harm. The most serious allegations plaintiff has made are that he was deprived of a meal on one occasion and that he was deprived of medical care on three occasions. He has not alleged any of the deprivations experienced by the plaintiff in Sostre or anything conceivably worse. Even if the court were to find that he has alleged sufficient facts to warrant further fact-finding on the severity of the conditions in SHU, he has not alleged that defendant or anyone else at Orleans had the requisite culpable state of mind to support an Eighth Amendment claim.
For the foregoing reasons, this court grants summary judgment in favor of defendant. The complaint is dismissed, and judgment shall enter for defendant.
For the reasons set forth above, I hereby certify that any appeal from this order would not be taken in good faith pursuant to 28 U.S.C. § 1915(a), and leave to appeal to the Court of Appeals as a poor person is hereby denied. Coppedge v. United States, 369 U.S. 438, 8 L. Ed. 2d 21, 82 S. Ct. 917 (1962).
Further requests to proceed on appeal as a poor person should be directed, on motion, to the United States Court of Appeals for the Second Circuit in accordance with the requirements of Rule 24 of the Federal Rules of Appellate Procedure.
JOHN T. CURTIN
United States District Judge
Dated: November 13, 1996