found that the regulations concerning "good time" could create a liberty interest if the deprivation of "good time" affected the length of the sentence.
The determination of whether a "liberty interest" exists in the context of prison discipline must begin with the Supreme Court's decision in Sandin v. Conner. In Sandin, the Supreme Court established a new test for determining whether administrative or disciplinary actions taken in prisons which alter the conditions of a prisoner's confinement require constitutional procedural protections. Prior to Sandin, the Court focused on whether prison officials' actions were taken pursuant to mandatory or discretionary statutes or prison regulations to determine whether they implicated a "liberty interest" for purposes of procedural due process. Sandin, 115 S. Ct. at 2299. Mandatory language could create a state created liberty interest in the subject matter of the statute or regulation. See e.g., Olim v. Wakinekona, 461 U.S. 238, 249, 75 L. Ed. 2d 813, 103 S. Ct. 1741 (1983) (the transfer of prisoner from one prison to another did not implicate a liberty interest because the authorizing regulation was discretionary). However, with this sort of analysis, "the Court encouraged prisoners to comb regulations in search of mandatory language on which to base entitlements to various state-conferred privileges." Sandin, 115 S. Ct. at 2299. As a result, disincentives were created for the states to codify prison management procedures, and the federal courts had to become involved with the day-to-day management of the prisons. Id. In response to this undesired result, the Sandin Court decided that constitutional due process protections are only implicated when the denial of a state created "interest" imposes an "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." 1995 U.S. LEXIS 4069 at *1, 515 U.S. 472, 115 S. Ct. 2293, 132 L. Ed. 2d 418.
Applying this criteria to disciplinary confinement in the SHU, district courts in the Second Circuit have generally found that any SHU confinement under a year in time is not an atypical or significant hardship on the prisoner. Carter v. Carriero, 905 F. Supp. 99, 103-04 (W.D.N.Y. 1995) (270 day confinement in the SHU is not significant and atypical); Nogueras v. Coughlin, 1996 U.S. Dist. LEXIS 12419, 1996 WL 487951, at *5 (S.D.N.Y., 1996) (210 days in SHU confinement); Polanco v. Allan, 1996 U.S. Dist. LEXIS 6329, 1996 WL 250237, at *3 (N.D.N.Y., 1996) (365 days); but see Justice v. Coughlin, 941 F. Supp. 1312, 1324 (N.D.N.Y. 1996) (atypicality should be determined based on the highest potential penalty received in the disciplinary hearing, not actual penalty imposed).
In his Report-Recommendation, Judge DiBianco relies on the reasoning set forth in Justice, finding that because the potential penalty in a Tier III disciplinary hearing could result in confinement for more than one year, the presence of a state created liberty interest should be presumed. The Second Circuit has not yet addressed whether the "potential penalty" approach should be read into the Supreme Court's decision in Sandin for purposes of identifying there is a "significant and atypical hardship" implicated. However, it is the view of this Court in light of the reasoning set forth in Sandin, i.e., limiting due process protection to those cases where a certain degree of hardship is imposed, that the application of the "potential penalty" approach would be an unwarranted extension of this limitation.
Thus, consistent with Sandin, this Court declines to adopt the "potential penalty" approach advanced by Magistrate Judge DiBianco, in favor of the prevailing practice in the Second Circuit of examining the actual penalty imposed when evaluating "atypicality." Accord Morris v. Dann, 1996 U.S. Dist. LEXIS 18878, 1996 WL 732559, at *4 (N.D.N.Y., 1996). Therefore, the Court finds that the Plaintiff's SHU confinement of 300 days does not implicate a state created liberty interest.
The Court also declines to adopt the Magistrate Judge's finding that the loss of good time could create a liberty interest.
The district courts in this circuit have disagreed over whether the loss of good time as a result of a disciplinary hearing implicates a liberty interest, post Sandin. Miller v. Selsky, 1995 U.S. Dist. LEXIS 21787, No. 94-CV-139, at 7-8 (N.D.N.Y., November 22, 1995) ("New York Law does not create a vested liberty interest triggering the procedural due process protection described in Wolff, in the potential loss of good time credits"); Turner v. Silver, 1996 U.S. Dist. LEXIS 21744, No. 93-CV-1099, at 3 (N.D.N.Y., April 2, 1996) (loss of good time does not represent an atypical and significant hardship); but see Morris, 1996 U.S. Dist. LEXIS 18878, 1996 WL 732559, at *5 (the issue of whether the loss of good time is atypical and significant is open in the Second Circuit); Uzzell v. Scully, 893 F. Supp. 259, 263 (S.D.N.Y. 1995) (suggested in dicta that the loss of good time credit would have created a liberty interest in a shortened sentence); Martinez v. Coombe, 1996 U.S. Dist. LEXIS 15331, 1996 WL 596553, at *6 (N.D.N.Y., 1996) (found that Wolff and Sandin require that a liberty interest be found in the loss of good time).
Both Uzzell and Martinez rely directly on Sandin 's confirmation of the holding of Wolff v. McDonnell, 418 U.S. 539, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974). In Wolff, the Supreme Court "held that the Due Process Clause itself does not create a liberty interest in credit for good behavior, but that the statutory provision at issue in that case created a liberty interest in a 'shortened prison sentence' which resulted from good time credits which were revokable only if the prisoner was guilty of serious misconduct." Sandin, 115 S. Ct. at 2296 (quoting Wolff, 418 U.S. 539 at 557 (emphasis added)).
This Court agrees that Sandin makes clear that the holding of Wolff is still good law. In Wolff, however, the Court found a liberty interest in the loss of good time only because the Nebraska statutory scheme created a right to a shortened sentence.
In contrast, New York statutes and regulations regarding good time make it clear that prisoners have no right to good time or a shortened sentence from its accumulation. N.Y. Correct. Law § 803(1), (4). Disciplinary hearings can only "recommend" the loss of good time. The recommendation is only tentative until the "Time Allowance Committee" meets four months before the minimum term of the sentence, and makes a determination of how much good time to award, subject to review by the Commissioner of DOCS whose discretion is unfettered. N.Y. Comp. Codes R. & Regs. tit. 7 § 260.4(b); Matter of Amato v. Ward, 41 N.Y.2d 469, 474, 393 N.Y.S.2d 934, 362 N.E.2d 566 (1977). In making this determination, the Time Allowance Committee is required to view the entire record of the prisoner and exercise discretion to "appraise the entire institutional experience of the inmate." 7 NYCRR § 261.3(c). As such, the award of good time in New York can only create a possibility of early release for the prisoner. It has long been the law that, in New York, there is no constitutionally protected liberty interest in the possibility of early release from prison. See e.g., Boothe v. Hammock, 605 F.2d 661 (2d Cir. 1979). Therefore, the Court declines to adopt Magistrate Judge DiBianco's recommendation and finds that there is no "state created" liberty interest in good time credits in New York because the state regulations have not created such a right. Since there is no state created liberty interest and, consistent with Wolff, there is no inherent due process right to good time credits, the Plaintiff has failed to state a claim for a Fourteenth Amendment violation.
Having carefully reviewed the Defendants' objections, Magistrate Judge DiBianco's Report-Recommendation, and the applicable law on the matter, the Court declines to adopt Judge DiBianco's Report-Recommendation for the reasons set forth in this decision. Therefore it is hereby
ORDERED that the Defendants' Fed. R. Civ. P. 12(b)(6) motion to dismiss the Plaintiff's complaint for failure to state a claim is GRANTED, for the reasons set forth above; and it is further
ORDERED that the Plaintiff's complaint is dismissed in its entirety.
IT IS SO ORDERED.
Date: March 27, 1997
Syracuse, New York
Frederick J. Scullin, Jr.
United States District Judge