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May 7, 1997

ANDRE PORTER, Plaintiff, -vs- MR. THOMAS A. COUGHLIN, III, Commissioner, New York State Department of Correctional Services, FRANK E. IRVIN, Superintendent, Wende Correctional Facility; ACTING CAPTAIN WALKER, Wende Correctional Facility; MR. DONALD SELSKY, Commissioner Designee Director of Disciplinary Hearings; and JOHN P. KEANE, Superintendent of Sing-Sing Correctional Facility, Defendants.

The opinion of the court was delivered by: CURTIN



 Plaintiff brings this action under 42 U.S.C. § 1983, alleging violations of his civil rights as protected by the Eighth and Fourteenth Amendments, claiming that he has suffered cruel and unusual punishment and deprivation of liberty without due process. Specifically, plaintiff contends that defendants violated his constitutional rights by denying him adequate process at an April 14, 1993, Superintendent's Hearing and in his continuous confinement to the Special Housing Unit ("SHU"). He contends that his confinement to SHU has been indefinite, without a mechanism for periodic review, and that this constitutes a significant and atypical deprivation of liberty.

 On September 25, 1996, defendants moved for summary judgment (Item 23). In support of their motion, defendants submitted affidavits prepared by Assistant Attorney General Jerry McGrier, Sr. (Item 27), defendant Donald Selsky (Item 26), and Anthony Annucci, Deputy Commissioner and Counsel for DOCS (Item 28), a statement of undisputed facts (Item 25), and an accompanying memorandum of law (Item 24). In response, plaintiff has filed a memorandum of law and a statement of undisputed facts (Items 30 and 31).


 On May 28 and 29, 1991, there was an inmate uprising in the A-Block yard of the Southport Correctional Facility ("Southport"). Southport had recently been converted to a "central SHU." At that time, plaintiff was confined to Southport for disciplinary reasons unrelated to the present action. During this uprising, a group of inmates held five correction officers hostage. Plaintiff admits to being present in the yard during the uprising, but he contends that he was not a participant. However, a bystander stated that he saw plaintiff holding a knife to one of the corrections officers. It is unclear whether plaintiff was ever charged with a weapons violation (Item 19, pp. 1-2). The day following the uprising, 53 prisoners were transferred to different prisons in the system. Plaintiff was transferred to Great Meadow Correctional Facility (Id., p. 2).

 On May 30, 1991, plaintiff was served with a misbehavior report. Plaintiff was charged with two DOCS Rule Book violations: Rule 104.10 (riot takeover) and Rule 104.11 (violent conduct) (Item 31, exhibit A; Item 19, p. 2). At a Superintendent's Hearing, plaintiff was found guilty of violations under these rules and he was sentenced to 36 months in SHU. This conviction was affirmed by defendant Selsky in August 1991. Plaintiff challenged the hearing officer's decision by filing an Article 78 petition in state court. While this petition was pending, plaintiff was transferred to Wende (Item 19, p. 2; Item 12, PP 15-18).

 On December 1, 1992, plaintiff was indicted under New York Penal Law § 205.25 for the crime of promoting prison contraband in the first degree for his involvement in the May 1991 incident at Southport. On December 22, 1992, he was found guilty in the Chemung County Court on this charge (Item 19, p. 3; Item 13, Exhibit B). The court sentenced plaintiff to serve 3 to 6 years, consecutive to plaintiff's unexpired sentence of 4 to 12 years for robbery. See People v. Porter, 220 A.D.2d 884, 632 N.Y.S.2d 336 (A.D. 3 Dept. 1995).

 On February 24, 1993, plaintiff began serving a 180-day SHU sentence as punishment for committing an unhygienic act (DOCS Rule 118.22). This sentence was the result of an incident that had occurred on February 7, 1993, for which he had a disciplinary hearing on February 14, 1993 (Item 1, PP 17-18; Item 25, P 10; Item 31).

 On April 5, 1993, Wende Corrections Counselor Paul Mecca filed a new misbehavior report charging plaintiff with a violation of DOCS Rule 1.00 (Penal Law Offense) for his involvement in the May 1991 Southport riot. The report referred to plaintiff's indictment and conviction of promoting prison contraband by the Chemung County Court in December 1992 (Item 19, p. 3; Item 31, Exhibit J).

 On April 14, 1993, Acting Captain Walter held a Tier III Superintendent's Hearing to review plaintiff's newest charge. Plaintiff entered a plea of not guilty for the charge of promoting prison contraband in the first degree for the May 1991 incident and requested witnesses. From the hearing record, it appears that no witnesses testified, and plaintiff did not sign the hearing record sheet. It is not clear whether plaintiff was unable to sign the hearing record sheet or he refused to do so. Plaintiff was found guilty at the hearing and was sentenced to five years in the SHU (Item 27).

 Plaintiff appealed the hearing decision, claiming that the hearing was not timely, documentary evidence was not made available, witnesses were not called, and an electronic recording was not made. In May 1993, defendant Selsky affirmed the hearing decision. On June 22, 1993, defendant Selsky reduced plaintiff's sentence to 36 months in SHU (Item 19, p. 4; Item 26; Item, 27).

 On August 23, 1993, plaintiff began serving his 36-month SHU sentence on this charge. He resided in SHU from August 23, 1993 to May 23, 1996. The remaining three ...

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