1995 WL 529624 (W.D.N.Y. 1995) (Elfvin, J.) (2,555 days in SHU is not atypical and significant); nevertheless, this court does not believe that a sentence of three years fails to create a protected liberty interest.
Having determined that a 36-month SHU sentence creates a liberty interest, the court now must determine whether the procedural protections provided by the defendants were sufficient under the standard set forth in Wolff v. McDonnell, 418 U.S. 539, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1973). Sandin, 115 S. Ct. at 2300-2302. Under Wolff, an inmate is entitled to 1) written notice of the charges at least 24 hours in advance; 2) a written statement by the fact finders as to the evidence relied upon and the reasons for the action; and 3) an opportunity to call witnesses and present evidence when doing so will not be unduly hazardous to institutional safety or correctional goals. Wolff, 418 U.S. at 564-66.
In the present case, despite his protestations to the contrary, the record shows that plaintiff received the process he was due. He received both written notice of the charges against him and a written explanation of the hearing officer's final determination and the facts and reasons underlying this decision. Although plaintiff claims that he was denied the ability to call particular witnesses, defendants have provided reasonable explanations as to why these witnesses were not called. Specifically, two of plaintiff's proposed witnesses, the county judge and the Assistant District Attorney involved in plaintiff's December 1992 Chemung County trial for the charge of promoting prison contraband, refused to testify on the grounds that they had no relevant testimony to offer (Item 27; Item 31, Exhibit E). Acting Captain Walter denied the remaining witnesses because they were not involved in the underlying action (Item 27). In Wolff, the Supreme Court specifically recognized that prison officials have the discretion to decline to call witnesses in disciplinary proceedings, particularly those who know nothing of the underlying events at issue. Wolff, 418 U.S. at 568-69.
It appears as if plaintiff did not understand the nature of the proceeding that occurred on April 14, 1993. That proceeding was a Tier III Superintendent's Hearing, an in-house disciplinary proceeding, regarding a misbehavior report charging plaintiff with a violation of DOCS Rule 1.00 (Penal Law Offense). Rule 1.00 prohibits inmates from committing any penal law offenses and authorizes both prosecution through the courts and departmental sanctions (See, Item 31, Exhibit H, p. 8). The purpose of the April 14 hearing was to determine whether plaintiff had already been found guilty in state court of promoting prison contraband in the first degree (Penal Law 205.25), and if so, to assign an appropriate penalty for this violation. Thus, all the hearing officer had to do to find a prison rule violation in this case was to ascertain whether plaintiff had been actually convicted in state court. The hearing was not an opportunity for plaintiff to reargue the merits of the underlying charge. The prison officials had the opportunity to impose their own penalty on plaintiff for his involvement in the Southport riot without implicating double jeopardy.
The record shows that plaintiff was found guilty, by verdict, of promoting prison contraband in the first degree in Chemung County Court on December 22, 1992.
In Wolff, 418 U.S. at 556, the Supreme Court specifically stated that "prison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply" (citations omitted). In the present case, plaintiff was able to argue the merits of the underlying change in a state court criminal prosecution. Consequently, he was presumably accorded "the full panoply of rights due a criminal defendant."
Since plaintiff had already received more process on the underlying charge than would normally be accorded to him in a prison disciplinary proceeding, the court fails to see how plaintiff was denied due process during his April 14, 1993, Tier III hearing.
II. Eighth Amendment Claim
Plaintiff asserts that he is entitled to relief under the Eighth Amendment since as a result of being denied due process in his April 14, 1993, disciplinary hearing he was subjected to cruel and unusual punishment. Plaintiff has not specifically addressed his Eighth Amendment claim in his pleadings, but rather he has combined it with his due process claim (See Item 1, p. 7). In his recitations of the facts underlying his claims, plaintiff describes the conditions of SHU and alleges that prison officials (1) placed him in a cell "around feces throwing inmates," (2) had inmates throw feces in his cell and directly at him, and (3) placed him on a restricted diet (Item 31, pp. 2, 16). Thus, construing the complaint and pleadings to resolve all ambiguities in favor of plaintiff, the court assumes that he is claiming that his confinement in SHU constituted cruel and unusual punishment.
In order to succeed on his Eighth Amendment claim, plaintiff must prove that the conditions of his confinement were "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 access to the prison library, restricted in the ability to receive food packages from the outside, and limited at meals to only one portion and a different desert than 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, 128 L. Ed. 2d 811, 114 S. Ct. 1970 (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."