The opinion of the court was delivered by: MCAVOY
MEMORANDUM - DECISION AND ORDER
The present issue, whether Plaintiff's procedural due process rights were violated, is before this Court for a second time. Plaintiff Paul Vasquez, a pro se state prison inmate, commenced this 42 U.S.C. section 1983 action on December 10, 1994. On December 15, 1995, Defendants moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure on the ground that Plaintiff has no protected liberty interest under Sandin v. Conner, 515 U.S. 472, 132 L. Ed. 2d 418, 115 S. Ct. 2293 (1995). Plaintiff opposed the motion, arguing that he has a liberty interest in good time credits and in not being confined to the Special Housing Unit ("SHU") for 545 days.
This matter was referred to Magistrate Judge Daniel Scanlon, Jr. for a Report-Recommendation pursuant to 28 U.S.C. section 636(b) and N.D.N.Y.L.R. 72.3(c).
On July 7, 1997, Magistrate Judge Scanlon concluded that Plaintiff had a protected liberty interest in good time credits and recommended that Defendants' motion for summary judgment be denied. Judge Scanlon was, however, unable to determine whether Plaintiff's confinement in SHU created a liberty interest or whether Plaintiff was afforded due process during the disciplinary hearing because he found the record inadequate. Defendants filed objections.
On September 20, 1997, this Court issued a Decision and Order finding no liberty interest in good time credits and recommitted the matter to Magistrate Judge Scanlon to address the question of whether Plaintiff's 545 day confinement in SHU gave rise to a protected liberty interest. Defendants thereafter submitted, inter alia, copies of Plaintiff's Tier III hearing transcript for Judge Scanlon's review.
On December 4, 1997, Judge Scanlon issued a Report- Recommendation finding that Plaintiff had a protected liberty interest in his SHU confinement, but that Plaintiff nevertheless received all the due process necessary during his disciplinary hearing. Judge Scanlon thus recommended that Defendants' motion for summary judgment be granted and that the Complaint be dismissed. Plaintiff filed objections.
Under Rule 72(b) of the Federal Rules of Civil Procedure, the District Court "shall make a de novo determination upon the record, or after additional evidence, of any portion of the magistrate judge's disposition to which specific written objection has been made in accordance with this rule." See also 28 U.S.C. § 636 (b)(1)(C). In making this de novo determination, the Court "may accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions." Fed. R. Civ. P. 72 (b); see also 28 U.S.C. § 636 (b) (1).
B. Liberty Interests in SHU Confinement
The sole issue before this Court is whether Plaintiff's confinement in SHU created a liberty interest sufficient to invoke procedural due process protection; and, if so, whether Plaintiff was afforded due process of law.
District courts in the Second Circuit have taken various approaches in deciding whether SHU confinement creates a protected liberty interest. Some courts, for example, have refused to decide the issue, presuming a liberty interest, but disposing of the matter on other grounds. See Pacheco v. Vanwyk, 1997 U.S. Dist. LEXIS 16155, 1997 WL 642540 (N.D.N.Y. 1997) (Pooler, J.) (question of whether SHU confinement was an atypical, significant hardship was not reached because plaintiff was not deprived of due process); Hailey v. Provost, 1997 U.S. Dist. LEXIS 15889, 1997 WL 627547 (N.D.N.Y. 1997) (Pooler, J.) (same); Kingwood v. Coombe, 1997 U.S. Dist. LEXIS 8301, 1997 WL 323913 (S.D.N.Y. 1997) (same); Lee v. Coughlin, 1997 U.S. Dist. LEXIS 5224, 1997 WL 193179 (S.D.N.Y. 1997) (same); Howard v. Pierce, 981 F. Supp. 190 (W.D.N.Y. 1997) (same); Edmonson v. Coughlin, 1996 U.S. Dist. LEXIS 15944, 1996 WL 622626 (W.D.N.Y. 1996) (same); Mitchell v Irvin, 1995 U.S. Dist. LEXIS 20442, 1995 WL 818664 (W.D.N.Y. 1995) (same); Charles v. Coughlin, 985 F. Supp. 88 (E.D.N.Y. 1997) (same). Other district courts in this circuit, while not agreeing on a determinative length of confinement, have focused on duration as the sole relevant factor, essentially ignoring the conditions of confinement. See, e.g., Marino v. Klages, 973 F. Supp. 275, 278 (N.D.N.Y. 1997) (Scullin, J.) ("any SHU confinement under a year in time is not an atypical or significant hardship on the prisoner."); Dawes v. Dibiase, 1997 U.S. Dist. LEXIS 9533, 1997 WL 376043 (N.D.N.Y. 1997) (McAvoy, C.J.) (365 days insufficient); Polanco v. Allan, 1996 WL 377074, at *2 (N.D.N.Y. 1996) (McAvoy, C.J.) (365 days); Arosena v. Coughlin, 1996 U.S. Dist. LEXIS 15769, 1996 WL 607096 (W.D.N.Y. 1996) (249 days); Carter v. Carriero, 905 F. Supp. 99, 103-104 (W.D.N.Y. 1995) (270 days); Ruiz v Selsky, 1997 U.S. Dist. LEXIS 3473, 1997 WL 137448 (S.D.N.Y. 1997) (192 days). One court has even held that 2,555 days in SHU is not an atypical and significant hardship. Medina v. Bartlett, 1995 U.S. Dist. LEXIS 13033, 1995 WL 529624 (W.D.N.Y. 1995) (relying on time in SHU as the determinative factor).
Some courts in this circuit, however, follow a two step analysis wherein the court must determine (1) whether the length of confinement creates an atypical, significant hardship; and (2) whether the conditions of confinement create an atypical, significant hardship in relation to ordinary incidents of prison life. These courts primarily rely on the specific factual record presented to them. See Delaney v. Selsky, 899 F. Supp. 923 (N.D.N.Y. 1995) (McAvoy, C.J.) (365 days SHU confinement ordinarily does not create an atypical and significant hardship, but where plaintiff is over seven feet tall and the bed is too small, the question becomes whether the conditions of confinement create an atypical and significant hardship); Husbands v. McClellan, 957 F. Supp. 403 (W.D.N.Y. 1997) (length of confinement alone did not impose an atypical and significant hardship, but the conditions of confinement did impose such a hardship); Warren v. Irvin, 985 F. Supp. 350 (W.D.N.Y. 1997) (neither length of confinement nor conditions imposed an atypical and significant hardship); Hernandez v. Tiede, 1996 U.S. Dist. LEXIS 20789, 1996 WL 863453 (W.D.N.Y. 1996) (136 days SHU confinement requires a factual determination as to whether confinement was an atypical and significant hardship on inmates); Tulloch v. Coughlin, 1995 U.S. Dist. LEXIS 19624, 1995 WL 780970 (W.D.N.Y. 1995) (180 days does not create a liberty interest, but court implies that any length in SHU confinement is acceptable so long as the conditions are not an atypical and significant hardship in relation to the ordinary incidents of prison life); Wright v. Miller, 973 F. Supp. 390 (S.D.N.Y. 1997) (stating that time in SHU may create a liberty interest if plaintiff establishes an atypical and significant hardship); Gonzalez v. Coughlin, 969 F. Supp. 256 (S.D.N.Y. 1997) (same); Cespedes v. Coughlin, 969 F. Supp. 254 (S.D.N.Y. 1997) (104 days in SHU may implicate a liberty interest depending on the factual record); Nogueras v. Coughlin, 1996 U.S. Dist. LEXIS 12419, 1996 WL 487951, at *5 (S.D.N.Y. 1996) (stating 210 days in SHU does not implicate a liberty interest in itself, plaintiff must also demonstrate that he has suffered an atypical and significant hardship in relation to the ordinary incidents of prison life).
As the aforementioned cases demonstrate, district courts in this Circuit have utilized a variety of approaches in determining whether a liberty interest has been created in SHU confinement under Sandin. In grappling with this issue, a number of decisions in the Northern and Southern Districts of New York have utilized the presumption of a liberty interest approach, while others have determined that the sole relevant factor is the length of SHU confinement. The Eastern District of New York, in comparison, has consistently held that a court should consider the duration of the prisoner's sentence and the conditions of confinement relative to the circumstances faced by other inmates in the general population. See Roucchio v. Coughlin, 923 F. Supp. 360, 372 (E.D.N.Y. 1996); Charles, 985 F. Supp. at 88. The Western District of New York, while not wholly consistent, has invariably followed the two step analysis in its most ...