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July 31, 1997

TYRONE WRIGHT and GEORGE LYONS, Plaintiffs, against T.J. MILLER, Acting Superintendent, et al., Defendants.

The opinion of the court was delivered by: BAER


 HAROLD BAER, JR., District Judge:

 Plaintiffs are inmates incarcerated in the custody of the New York State Department of Correctional Services ("DOCS"). They bring this action pursuant to 42 U.S.C. § 1983, seeking declaratory relief and money damages for alleged violations of their constitutional rights in the conduct of prison disciplinary hearings against them. Defendants move for summary judgment. For the reasons discussed below, the motion is GRANTED in part and DENIED in part.


 Plaintiffs were involved in an altercation with another inmate, Louis Maple, at the Woodburne Correctional Facility on October 9, 1995. As a result of the altercation, disciplinary charges were brought against plaintiffs. Each plaintiff had an individual Tier III disciplinary hearing conducted by hearing officer Lieutenant Thomas Trask, a defendant herein. At the conclusion of the separate hearings, Lieutenant Trask imposed the following penalties on plaintiffs. The disposition with respect to plaintiff Lyons was 15 months confinement to a special housing unit ("SHU") (and concomitant loss of privileges) and 12 months recommended loss of good time. The disposition for plaintiff Wright was 12 months SHU confinement (and loss of privileges) and 12 months recommended loss of good time. Plaintiffs appealed and each determination was reversed. The reversal was based on a failure to allow plaintiffs to call certain witnesses.

 Following the reversals, plaintiffs were each given a rehearing before another hearing officer, Lieutenant Anthony DeBartolo, another defendant herein. Lieutenant DeBartolo found plaintiffs guilty of the infractions charged and imposed the same sentence that had been imposed previously. Defendants appealed these determinations as well, but they were affirmed.

 Plaintiffs then brought this action in federal court alleging that their rights were violated in several ways with respect to the conduct of both the initial hearings and the rehearings. Specifically, plaintiffs allege their rights were violated with respect to the initial hearings when they were denied the right to call witnesses by defendant Trask (counts 1, 3) and when defendant T.J. Miller, the Acting Superintendent, failed to reverse the determinations (count 4). *fn1" They allege their rights were violated with respect to the second hearing when they were denied their right to call witnesses by defendant DeBartolo (counts 1, 5) and when they were denied their right to a hearing before an impartial hearing officer (counts 6, 7). The latter allegation relates to conversations Trask and DeBartolo had before each of the rehearings, which plaintiffs allege were improper and rendered DeBartolo partial.


 A. Edwards

 Surprisingly, neither plaintiffs nor defendants have addressed the significant impact of the Supreme Court's recent decision in Edwards v. Balisok, 137 L. Ed. 2d 906, 117 S. Ct. 1584 (1997) on this case. Edwards held that a "claim for damages and declaratory relief brought by a state prisoner challenging the validity of the procedures used to deprive him of good time credits" is not cognizable under § 1983 where the allegations of due process violations, if true, would "necessarily imply the invalidity of the punishment imposed" unless the prisoner establishes that the determination at issue has previously been invalidated. 117 S. Ct. at 1585, 1589. Plaintiffs' contentions here--that they were deprived of the right to an impartial hearing officer and the right to call witnesses on their behalf--if true, would necessarily imply an invalid disposition, i.e. their loss of good time and SHU confinement, and require reversal and a new hearing. Accordingly, any claims based on plaintiffs' rehearings (and thus all claims against defendant DeBartolo) are barred by Edwards, as those determinations were never invalidated. *fn2"

 The same analysis produces a different result when applied to the violations alleged with regard to the initial hearings. Those hearings were invalidated on appeal, thus meeting the prerequisite set forth in Edwards. The parties have not addressed this issue, although the complaint clearly sets forth claims against defendant Trask with respect to the denial of witnesses (count 3). Such claims can only relate to the initial hearings, at which Trask served as hearing officer. *fn3" Furthermore, the complaint states a claim against defendant Miller for failing to "rectify the errors of the hearing" (count 4). While the complaint does not specify which "hearing" is being referred to, a liberal reading of the complaint indicates this is a reference to the initial hearings, which were ultimately reversed by Donald Selsky, the Director of Special Housing.

 The inquiry, therefore, is whether plaintiffs can maintain a cause of action for the due process violations that occurred at the initial hearings, even though the sentence imposed in those hearings was reimposed in the subsequent hearings. It is well established that "where there has been a denial of due process, the victim is entitled at least to nominal damages," even if the resulting liberty deprivation is justified. Patterson v. Coughlin, 905 F.2d 564, 568 (2d Cir. 1990); Carey v. Piphus, 435 U.S. 247, 266, 55 L. Ed. 2d 252, 98 S. Ct. 1042 (1978) (recognizing section 1983 action for due process violation even where deprivation is justified). *fn4" Edwards itself recognized this principle and affirmed its validity in the prison context. Edwards, 117 S. Ct. at 1587. Edwards limited such actions, however, to two categories of cases: those where the challenge to the procedures, if valid, would not necessarily imply the invalidity of the punishment imposed and those where the punishment has already been invalidated. See Umar v. Johnson, 1997 U.S. Dist. LEXIS 8295, 173 F.R.D. 494, No. 94 C 5699, 1997 WL 321865 (N.D. Ill. June 9, 1997) at *7-8 (recognizing continued validity after Edwards of claims for injury inherent in due process violation itself, where due process claim does not necessarily invalidate substantive deprivation of liberty). As noted above, the initial hearing determinations were invalidated by DOCS, thus clearing the way for plaintiffs to proceed with this Section 1983 action for damages caused by the mere fact of a due process violation. If plaintiffs prove they were denied due process, they would be entitled to nominal damages for such a deprivation. They would also be entitled to damages for proven mental anguish resulting from the due process violation itself. Carey, 435 U.S. at 264 ("mental and emotional distress caused by the denial of due process itself is compensable under § 1983"); Miner v. City of Glens Falls, 999 F.2d 655, 662 (2d Cir. 1993). They would not, however, be entitled to damages for their incarceration in SHU or their lost good time, as those penalties were imposed pursuant to the rehearings, which the Court must deem constitutionally sufficient unless and until invalidated.

 B. Sandin

 Having overcome the Edwards hurdle with regard to the initial hearings, plaintiffs must also overcome the formidable hurdle established in Sandin v. Conner, 515 U.S. 472, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995). Sandin held that prisoners are entitled to due process protections only when they are subject to "atypical and significant hardship[s] . . . in relation to the ordinary incidents of prison life." 115 S. Ct. at 2300. Inmates alleging violation of their due process rights must "establish both that the confinement or restraint creates an 'atypical and significant' hardship under Sandin, and that the state has granted them . . . a protected liberty interest in remaining free from that confinement or restraint." Frazier v. Coughlin, 81 F.3d 313, 317 (2d Cir. 1996) (emphasis added).

 Defendants argue that plaintiffs had no liberty interest in being free from SHU confinement, regardless of the length of the confinement. The cases they rely on, however, did not so hold, but rather found that periods of confinement of up to one year did not create liberty interests. Other courts have held that longer periods of SHU confinement do constitute an "atypical and significant hardship" giving rise to due process protections. See Lee v. Coughlin, 902 F. Supp. 424, 432 & n.9 (S.D.N.Y. 1995) ("I am hard pressed to believe that 376 days in SHU would not constitute an 'atypical and significant' hardship as defined by Sandin "), reconsideration granted, 914 F. Supp. 1004 (S.D.N.Y. 1996); Lee v. Coughlin, 1997 U.S. Dist. LEXIS 5224, No. 93 Civ. 8952 (LAP), 1997 WL 193179 at *3 (S.D.N.Y. April 18, 1997) (citing cases); Giakoumelos v. Coughlin, 88 F.3d 56, 62 (2d Cir. 1996) (twelve month confinement to SHU may constitute "atypical and significant hardship" under Sandin); Williams v. Fountain, 77 F.3d 372, 374 n.3 (11th Cir.) (one year of punitive segregation triggers due process protections), cert. denied, 136 L. Ed. 2d 257, 117 S. Ct. 367 (1996).

 More importantly, defendants argument ignores the Second Circuit's admonition that "Sandin did not create a per se blanket rule that disciplinary confinement may never implicate a liberty interest." Miller v. Selsky, 111 F.3d 7, 9 (2d Cir. 1997). Rather, district courts are required to make factual findings with respect to the conditions of confinement at issue in each case. Sealey v. Giltner, 116 F.3d 47, 52 (2d Cir. 1997) (noting "desirability of fact-finding before determining whether a prisoner has a liberty interest [under Sandin ] in remaining free from segregated confinement"); Miller, 111 F.3d at 9; Brooks v. Difasi, 112 F.3d 46 (2d Cir. 1997). Plaintiffs here were sentenced to 15 and 12 months SHU confinement respectively, *fn5" and defendants have not submitted affidavits or other evidence to establish a basis for a factual determination as to whether such complement constitutes an atypical and significant hardship. Absent a greater factual record, the Court is unwilling to hold as a matter of law that such confinement does not create a liberty interest.

 One final point must be addressed with regard to the Sandin analysis. As discussed above, plaintiffs here are only challenging the injury arising from the deprivation of procedural due process, not from the resultant penalty. It thus seems anomalous to focus on the penalty imposed in order to determine whether plaintiffs were entitled to due process in the first place. Such an analysis, however, is necessary in order to reconcile the Supreme Court's holding in Sandin with its more recent affirmation in Edwards of the availability of nominal damages for due process violations regardless of any actual injury. The Court has located no caselaw directly on-point. While the Supreme Court *fn6" and the Second Circuit *fn7" have been equivocal as to whether potential penalties suffice to create liberty interests, the question here relates not to actual versus potential penalty, but to an actual penalty that is justified by a later hearing that corrected the due process violations. *fn8" The nature of plaintiffs' injury in this case relates directly to the penalty imposed (and ultimately reimposed)--i.e., the extent of their injury from the due process violation is based on the knowledge that they were sentenced to a year or more in SHU in an unconstitutional hearing. Focus on the penalty imposed thus makes logical sense in determining whether plaintiffs were entitled to due process protections. "That resolution of potentially competing considerations may not weave a seamless web, but this Court's task is to apply the principles so recently reconfirmed by the Supreme Court, not to inquire into the wisdom of the policies underlying those principles." Umar, 173 F.R.D. 494, 1997 U.S. Dist. LEXIS 8295, 1997 WL 321865 at *8 (reconciling Supreme Court's holdings in Edwards, Heck and Wolff).

 The final prong of defendants' Sandin challenge--that New York state has not created a liberty interest in being free from SHU confinement--is more easily disposed of. This Court has recently reaffirmed the validity of pre-Sandin Second Circuit caselaw finding such a state-created liberty interest. Gonzalez v. Coughlin, 969 F. Supp. 256 (S.D.N.Y. 1997) (slip op.) (citing cases). "The Supreme Court in Sandin expressly stated its belief that the due process principles 'were correctly established and applied in Wolff. Thus, federal cases finding under Wolff that New York State regulations granted a protected liberty interest to inmates are still good law." Id. at 4 (citation omitted). Unless and until the Circuit holds otherwise, cf. Sealey, 116 F.3d at 52 (not addressing issue because it was not preserved on appeal), that is the law in this Circuit.

 C. Due Process

 While defendants have not addressed their summary judgment motion to the due process violations alleged to have occurred at the initial hearings, the undisputed record indicates that plaintiffs were denied certain witnesses at their initial hearings, allegedly because those witnesses refused to testify. Both plaintiffs' hearings were reversed because of defendant Trask's failure to adequately investigate the reasons for the refusal to testify. As the constitution provides inmates with a limited right to call witnesses on their behalf, Wolff v. McDonnell, 418 U.S. 539, 556, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974), plaintiffs have raised an issue of fact as to whether their constitutional rights were violated. As this right to call witnesses is clearly established, see id; McCann v. Coughlin, 698 F.2d 112, 124-25 (2d Cir. 1983); Williams v. Smith, 781 F.2d 319, 322 (2d Cir. 1986), defendants' qualified immunity defense fails. Finally, with respect to defendant Miller, there is an issue of fact as to his personal involvement, as he has admitted that in his capacity as Acting Superintendent he likely reviewed the first hearing determination and had the power to correct any problems. Miller Dep. at 21. Summary judgment is therefore denied with respect to defendant Miller.


 For the reasons discussed above, defendants' motion is GRANTED insofar as it relates to any claims growing out of the second hearings (including all claims against defendant DeBartolo) and those claims are DISMISSED WITHOUT PREJUDICE. Defendants' motion is DENIED insofar as it relates to the claims growing out of the initial hearings (including the claim against defendant Miller). A trial limited to any constitutional violations arising from the initial hearing and plaintiffs' entitlement to nominal and mental anguish damages will commence on August 18, 1997.


 Dated: July 31, 1997

 New York, New York

 Harold Baer, Jr.


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