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JACKSON v. NEW YORK DEP'T OF CORRECTIONAL SERVS.

February 11, 1998

RONALD JACKSON, Plaintiff, against THE NEW YORK DEPARTMENT OF CORRECTIONAL SERVICES, RICHARD STANULWICH, Correctional Counselor, C. COEFIELD, Correctional Officer, JOHN DOE, (LIEUTENANT O'DONNELL), Correctional Officer, Defendants.


The opinion of the court was delivered by: BAER

 Hon. Harold Baer, Jr., District Judge:

 Plaintiff pro se Ronald Jackson ("Jackson") filed this action pursuant to 42 U.S.C. § 1983 against the defendants New York State Department of Correctional Services ("DOCS"), and three individual defendants, current and former DOCS employees, in connection with his placement in keeplock for thirteen days while incarcerated at Green Haven Correctional Facility and his subsequent transfer out of Green Haven. Specifically, Jackson claims that his Fifth, Sixth, Eighth and Fourteenth Amendment rights were violated. By Opinion and Order dated September 7, 1995 I dismissed Jackson's § 1983 claim against DOCS for lack of subject matter jurisdiction. *fn1" Defendants now move for summary judgment on the complaint. For the reasons set forth below, defendants' motion is granted.

 Background

 In December 1989, Jackson was transferred from Clinton Correctional facility to Green Haven Correctional Facility due to an altercation with a fellow inmate, Darrow Holmes ("Holmes"). Because of this incident, DOCS classified Jackson and Holmes as "enemies," signifying that they should be kept in separate prisons. Compl. at P 11; Affidavit of Sarita Havas-Lovelace P 7. Despite this classification, Holmes was transferred to Green Haven in May 1994. In June, 1994, when Jackson learned of the transfer, he notified several correctional employees, including his corrections' counselor, defendant Richard Stanulwich, of Holmes' transfer. Compl. PP 13-20.

 In early June, 1994, Jackson met with Correctional Counselor Stanulwich to discuss Holmes' incarceration at Green Haven, at which time Jackson requested that Holmes be transferred or placed in protective custody. Compl. P 19. According to Stanulwich, plaintiff threatened Holmes' life during this meeting. Affidavit of Richard Stanulwich PP 15-18. Shortly thereafter, a prison sergeant advised Jackson to voluntarily place himself in protective keeplock, but Jackson refused. Compl. P 20. The matter was referred to and investigated by Deputy Superintendent Coefield. Stanulwich Aff. P 20; Compl. P 25.

 On June 18, 1994, prison officials placed Jackson in keeplock. Affidavit of John Dolan, P 11. Two days later Stanulwich issued a misbehavior report regarding Jackson's alleged threats on Holmes' life. Stanulwich Aff. P 22. According to plaintiff, on June 20, Stanulwich met with Jackson and explained that he authorized Jackson's keeplock status for Jackson's own protection. Jackson alleges that Stanulwich told him that Holmes could not be transferred because he had enemies all over the state, and that Stanulwich was going to issue a false misbehavior report so that Jackson could be transferred. *fn2"

 Discussion

 While the procedure employed by DOCS and its personnel to separate "enemies" could hardly by characterized as a testament to the computer age, neither is the resulting anxiety nor the hardship to the plaintiff the standard for summary judgment. Under Rule 56(c) of the Federal Rules of Civil Procedure, a motion for summary judgment shall be granted where the moving party establishes that there are no genuine issues of material fact in dispute and that it is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Fed. R. Civ. P. 56(c). A dispute regarding a material fact is genuine "'if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, 523 (2d Cir.) (quoting Anderson, 477 U.S. at 248), cert. denied, 506 U.S. 965, 121 L. Ed. 2d 359, 113 S. Ct. 440 (1992).

 I. The Disciplinary Process

 Plaintiff asserts various claims with respect to his disciplinary process. Specifically plaintiff asserts that his hearing was not completed in a reasonable time, that his misbehavior report was falsified, that he was denied the to right to call witnesses at his hearing, that he was improperly confined on a Saturday and that he was not provided with an inmate assistant in violation of prison regulations contained in 7 NYCRR and in violation of the due process clause. Compl. P 36. However, plaintiff's claims must be dismissed on the ground that he does not have a protected liberty interest in remaining in the general prison population under Sandin v. Conner, 515 U.S. 472, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995).

 In procedural due process cases, the threshold analysis is whether there is a liberty or property interest at stake. Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 460, 104 L. Ed. 2d 506, 109 S. Ct. 1904 (1989). There are two sources for such liberty interests: the Due Process clause and state statutes and regulations. The Supreme Court held in Sandin v. Conner that neither the Due Process clause nor relevant state prison regulations created a liberty interest that entitled the plaintiff to redress where the plaintiff was subject to disciplinary segregation for 30 days.

 The Court stated in Sandin that the States may under certain circumstances create a liberty interest protected by the Due Process clause, but such an interest will "generally [be] limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force,..., nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." 115 S. Ct. at 2299 (citations omitted). The court went on to state that discipline by prison officials in response to a wide range of misconduct falls within the acceptable parameters of the sentence imposed by a court of law. In particular, the court held that the plaintiff's segregated confinement ("SHU") for 30 days, even though ...


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