against him. Moreover, as discussed more fully below, Husbands was not deprived of any protected liberty interest. In light of Sandin v. Conner, 515 U.S. 472, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995), the punishment Husbands received did not implicate a liberty interest protected by the Fourteenth Amendment.
If a false disciplinary ticket is issued against an inmate in retaliation for the inmate's exercise of rights protected under the First Amendment, a claim under § 1983 may exist. To establish a claim for retaliation under § 1983, Husbands must initially show that he engaged in conduct that was protected by the First Amendment and that defendants' conduct was motivated by or substantially caused by an exercise of his First Amendment rights. Gagliardi v. Village of Pawling, 18 F.3d 188, 194 (2d Cir 1994). Husbands fails on both counts.
In the present case, Husbands has not claimed that he engaged in any protected First Amendment activity for which he was retaliated against by being issued the false disciplinary ticket. Rather, according to Husbands, he was issued the false disciplinary ticket so as to inhibit and prevent him from exercising his right in the future to seek redress for the assault. This claim must fail. The flaw in Husbands' argument is that he has completely failed to allege or show how the false disciplinary ticket prevented him from pursuing his First Amendment rights to seek redress from the government. Husbands has provided this Court with nothing to substantiate his claim that he was in any way prevented from pursuing redress for the alleged assault. He was not prevented from complaining to DOC officials. In fact, it appears from the record that Husbands did have a conversation with McClellan regarding Lilac's behavior. In response to the conversation, McClellan sent a memorandum to Husbands, dated August 22, 1991 advising that Husbands' complaint had been turned over to the Inspector General's Office for investigation. Furthermore, there is certainly no indication that Husbands was prevented from filing an action in federal court under § 1983 for the alleged assault.
Very simply, Husbands has not sufficiently alleged either that he engaged in any First Amendment activity for which he was subjected to retaliation or that he was in any way prevented from engaging in First Amendment activity.
Thus, even if Husbands is allowed to amend his complaint, his claim that Lilac issued him a false disciplinary ticket to prevent him from seeking redress for an earlier assault, in violation of the First Amendment, would be dismissed.
II. Defendants' Motion for Summary Judgment
A. Summary Judgment Standards
Summary judgment shall be granted if the pleadings and supplemental evidentiary materials "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). No genuine issue of material fact exists if "the record as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986).
To defeat summary judgment, the non-moving party must go beyond the pleadings and designate "specific facts showing that there is genuine issue for trial." Fed. R. Civ. P. 56(c). An argument that there are material factual issues which preclude a grant of summary judgment must be supported by concrete particulars. Dressler v. M.V. Sandpiper, 331 F.2d 130, 133 (2d Cir. 1964). Mere denials or general allegations without evidentiary support will not defeat a summary judgment motion. Engl v. Aetna Life Ins. Co., 139 F.2d 469, 473 (2d Cir. 1943).
B. Fourteenth Amendment Due Process Claim
Husbands claims that his Fourteenth Amendment due process rights were violated during the course of his Tier III disciplinary hearing. In particular, Husbands alleges that his inmate assistant was ineffective and that Woodward, the hearing officer, failed to adjourn the hearing in order to appoint an effective assistant, failed to direct that the documentary evidence requested by Husbands be produced, and failed to require proof concerning Husbands' ability to have obtained and possessed the weapon. As a result of these procedural violations, Husbands claims, in his amended complaint, that he was "improperly and unlawfully subjected to confinement to SHU for six (6) months...[and] was improperly subjected to loss of privileges for twelve (12) months."
To prevail in a § 1983 claim a prison inmate must demonstrate that he possessed a liberty or property interest protected by the United States Constitution or federal statutes and that, without due process, he was deprived of that interest. See Green v. Bauvi, 46 F.3d 189, 194 (2d Cir. 1995). A liberty interest may be implicated in appropriate circumstances by either a federal or state statute or by the United States Constitution itself. See Lee v. Coughlin, 902 F. Supp. 424, 430 (S.D.N.Y. 1995) ("liberty interests protected by the Due Process clause may arise from either the Due Process clause itself or from the laws of the states") citing Sandin, 115 S. Ct. At 2300.
In Sandin, the United States Supreme Court expressly determined 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 found 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." Sandin, supra at 2300. The prisoner's segregated confinement, according to the Court, did not present the type of atypical, significant deprivation in which a state might create such a liberty interest.
In the opinion's final paragraph, the Supreme Court concluded that "neither the Hawaii prison regulation in question, nor the Due Process clause itself, afforded [the plaintiff] a protected liberty interest that would entitle him to the procedural protections set forth in Wolff3" Sandin, supra at 2301.
The present case is indistinguishable from Sandin. "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 v. Carriero, 905 F. Supp. 99, 103 (W.D.N.Y. 1995), citing 7 N.Y.C.R.R. § 301.1-.7. Like the prisoner in Sandin, Husbands was not subjected to punishment that imposed "atypical and significant hardship" in relation to the ordinary incidents of prison life. Therefore, Husbands' punishment did not implicate a liberty interest under the Fourteenth Amendment and his claim must be dismissed. See also Lee, 902 F. Supp. at 430 (No liberty interest implicated by the Due Process clause in prison context unless confinement is "qualitatively different" from typical punishment and has "stigmatizing consequences"); Uzzell v. Scully, 893 F. Supp. 259 (S.D.N.Y. 1995) (no liberty interest in avoiding keeplock confinement because it is not atypical and significant).
Furthermore, the length of the confinement is not dispositive of whether a liberty interest is implicated, since under New York's prison regulations inmates may be confined in SHU for extended periods for both punitive and non-punitive reasons. Brooks v. DiFasi, 1995 U.S. Dist. LEXIS 19616, No. 93- CV-197E, 1995 WL 780976 *5 (W.D.N.Y. Dec. 29, 1995). Thus, numerous 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., Guzman v. Kelly, 1996 U.S. Dist. LEXIS 7576, No. 88-CV-1391(E), 1996 WL 291985 (W.D.N.Y. May 28, 1996)(eight months in SHU); Rivera v. Coughlin, 1996 U.S. Dist. LEXIS 560, No. 92 Civ. 3404(DLC), 1996 WL 22342 (S.D.N.Y. Jan. 22, 1996) (89 days in keeplock); Tulloch v. Couglhin, 1995 U.S. Dist. LEXIS 19624, No. 91- CV-211E, 1995 WL 780970 (W.D.N.Y. Dec. 22, 1995) (180 days in SHU); McMiller v. Wolf, 1995 U.S. Dist. LEXIS 13026, No. 94- CV-623E, 1995 WL 529620 (W.D.N.Y. Aug. 28, 1995) (183 days in SHU); Carter, 905 F. Supp. 99 (270 days in SHU). I agree with the reasoning of these cases and find that Husbands' confinement was not an "atypical and significant hardship" so as to give rise to the due process protections to which Husbands' claims he was entitled.
Finally, on the basis of the record before me, the fact that Husbands' punishment for the disciplinary violation initially included a loss of one year of good time credit is not sufficient to establish a liberty interest. Woodward's guilty finding was eventually administratively reversed by Coughlin on or about September 8, 1992. Husbands' record was expunged and his good time credit restored. There is absolutely no indication or allegation that the temporary loss of good time credit actually resulted in Husbands serving a longer overall sentence of incarceration. Husbands was not harmed by the initial loss of good time credit because the credit was restored before the loss affected his overall sentence. See Young v. Hoffman, 970 F.2d 1154 (2d Cir.)(per curiam), cert. denied, 510 U.S. 837, 126 L. Ed. 2d 80, 114 S. Ct. 115 (1993)(no liberty interest implicated where recommended loss of good time was vacated before prisoner served sentence).
Husbands' motion to amend his complaint, filed May 23, 1996, is DENIED. Defendants' motion for summary judgment, (Dkt. No. 20), is GRANTED. The complaint is dismissed in its entirety.
IT IS SO ORDERED.
DAVID G. LARIMER
UNITED STATES DISTRICT COURT
Dated: Rochester, New York
March 26, 1997.