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April 30, 1998

WALTER R. KELLY, ALBERT HALL, PHILLIP COOMBE, Acting Commissioner for Department of Corrections, Defendants.

The opinion of the court was delivered by: FELDMAN



 Plaintiff David McClary ("McClary") is a state prisoner in the custody of the New York State Department of Corrections. This action, commenced pursuant to 42 U.S.C. § 1983, arises as a result of McClary's uninterrupted confinement in the Special Housing Unit ("SHU") for the period of time from November 20, 1989 through March 12, 1994. McClary's confinement in SHU was not based on any misbehavior while incarcerated, but rather was "administrative segregation", predicated on a determination by prison officials that "the inmate's presence in the general population would pose a threat to the safety and security of the facility." See 7 N.Y.C.R.R. § 301.4(b).

 McClary commenced this action on May 20, 1990 while he was incarcerated in the Attica Correctional Facility. However, his continual confinement in SHU lasted in excess of four years and occurred in three different prison facilities (Attica, Southport and Wende). He was eventually released from administrative segregation shortly after being transferred from Wende to Shawangunk Correctional Facility on March 12, 1994. By Decision and Order entered January 21, 1997, and pursuant to Rule 15(d) of the Federal Rules of Civil Procedure, McClary's motion to file a supplemental complaint to include his administrative confinement in Southport and Wende was granted. (Docket # 64).

 The crux of the constitutional violation alleged in both the original and supplemental complaint is the same -- that the failure of the defendants to provide any meaningful review of their determination to place McClary in "administrative segregation" violated his constitutional right to due process. McClary seeks both damages and declaratory relief.


 The Due Process Clause of the Fourteenth Amendment protects individuals from deprivations of "life, liberty or property" without due process. Liberty interests entitled to due process protection arise from either the due process clause itself or from state law. Hewitt v. Helms, 459 U.S. 460, 466, 74 L. Ed. 2d 675, 103 S. Ct. 864 (1983). As to the latter source of due process protection, the Supreme Court had, in the past, instructed courts to examine whether the particular state law or regulation at issue contained "language of an unmistakably mandatory character requiring that certain procedures 'shall' 'will' or 'must' be employed" before a deprivation may occur. Id. at 471-472. If the statute or regulation used such mandatory language, then the state had created a protected liberty interest that could not be infringed absent due process. See e.g., Russell v. Coughlin, 910 F.2d 75, 77 (2d Cir. 1990)(New York regulations created liberty interest in remaining free from administrative confinement).

 During the pendency of this case, the Supreme Court abandoned the "mandatory language" analysis set forth in Hewitt. In Sandin v. Conner, 515 U.S. 472, 132 L. Ed. 2d 418, 115 S. Ct. 2293 (1995) the Court found that, in the context of prison regulations, Hewitt's "mandatory language" formula drove courts to digress from "the real concerns undergirding the liberty protected by the Due Process Clause." Id. at 483. "By shifting the focus of the liberty interest inquiry to one based on the language of a particular regulation, and not the nature of the deprivation, the Court encouraged prisoners to comb regulations in search of mandatory language on which to base entitlement to various state conferred privileges." Id. at 481. The Sandin Court found Hewitt to have produced two undesirable results: (1) States were reluctant to codify prison management procedures for fear they would be creating protected liberty interests for inmates and (2) courts were forced to squander valuable judicial resources by becoming involved in the day to day management of prisons.

 Disavowing the Hewitt analysis, the majority in Sandin decided to refocus the test of when prison regulations create protected liberty interests for inmates. The Supreme Court held:

States may in certain circumstances create liberty interests which are protected by the Due Process Clause. But these interests 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 impose atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.

 Sandin, supra at 474. (emphasis supplied). *fn1" Thus, to prevail on a due process claim in this post-Sandin era, an inmate must establish both that the confinement or restraint creates an "atypical and significant hardship in relation to ordinary incidents of prison life" and that the state has, by regulation or statute, granted its inmates a protected liberty interest in remaining free from that confinement or restraint. Frazier v. Coughlin, 81 F.3d 313, 317 (2d Cir. 1996).

 With respect to the first prong, that is whether the conditions of confinement were "atypical and significant", the Second Circuit has expressed the view that fact-finding will ordinarily be necessary. Sealey v. Giltner, 116 F.3d 47, 52 (2d Cir. 1997)("In a series of decisions . . . we have indicated the desirability of fact-finding before determining whether a prisoner has a liberty interest in remaining free from segregated confinement"). While the need for fact-finding may be apparent, the parameters of Sandin fact-finding hearings are far from settled. Indeed, within the last month, the Second Circuit has resolved two difficult legal issues that divided the parties during the fact-finding hearing held in this case.

 1. Sandin's Applicability to Non-Disciplinary Segregation : At issue in Sandin was the procedural due process rights of an inmate placed in segregation for disciplinary or punitive reasons. The Supreme Court concluded that the disciplinary confinement of an inmate for thirty days "did not present the type of atypical, significant deprivation in which a State might conceivably create a liberty interest." Sandin v. Connor, 515 U.S. at 474. (emphasis supplied). In so holding, the Sandin majority noted that the conditions found in disciplinary confinement "mirrored those conditions imposed upon inmates in administrative segregation and protective custody" and therefore the confinement was not "atypical" in relation to the "ordinary" or expected incidents of prison life. Id at 486.

 The Court's specific reference to administrative segregation as "typical" of what can normally be expected as an incident of prison life prompted some courts to question whether administrative or non-disciplinary segregation could ever be deemed "atypical".

Every state must have somewhere in its prison system single-person cells in which prisoners are sometimes confined not because they have misbehaved but simply because the prison has no other space, wishes to protect some prisoners from others, wishes to keep prisoners isolated from one another in order to minimize the risk of riots or other disturbances, wishes to prevent the spread of disease, and so forth. Almost 6 percent of the nation's prison inmates are in segregation (citation omitted) and it appears that the great majority of these are not in disciplinary segregation (citations omitted); so even a prisoner who had committed a white-collar crime and had been assigned to the lowest security prison in the state's system might find himself in segregation for a nondisciplinary reason. (citation omitted). Under Sandin this possibility is probably enough to prevent him from complaining successfully of a deprivation of liberty if he is transferred into segregation for a disciplinary infraction.

 Wagner v. Hanks, 128 F.3d 1173, 1176 (7th Cir. 1997). See Griffin v. Vaughn, 112 F.3d 703, 706-708 (3rd Cir. 1997)(15 month confinement in administrative custody did not deprive inmate of a liberty interest under Sandin); Pichardo v. Kinker, 73 F.3d 612, 613 (5th Cir. 1996)(administrative segregation, without more, simply does not constitute deprivation of a protected liberty interest under Sandin). See also Rosario v. Selsky, 1995 U.S. Dist. LEXIS 19175, 1995 WL 764178 (S.D.N.Y.)("under Sandin, there is no 'atypical and significant hardship' in disciplinary confinement if inmates placed in the SHU for non-disciplinary reasons are subject to comparable restrictions").

 On March 18, 1998, the Second Circuit resolved the issue of whether Sandin controlled situations where hardships are imposed on inmates for non-disciplinary reasons. In Arce v. Walker, 139 F.3d 329, 1998 U.S. App. LEXIS 5054, 1998 WL 119612 (2d Cir.), the inmate-plaintiff ("Arce") was temporarily confined in administrative segregation for a total of 18 days. During this brief period Arce claimed that the defendants deprived him of access to communal religious services, restricted his right to daily out of cell exercise and subjected him to "verbal harassment". The district court granted summary judgment on the basis that Arce failed to demonstrate that 18 days in administrative segregation amounted to an "atypical and significant" deprivation so as to implicate a protected liberty interest under Sandin. See Arce v. Walker, 907 F. Supp. 658 (W.D.N.Y. 1995).

 On appeal, Arce contended that Sandin was meant to apply only to claims challenging the conditions of punitive or disciplinary segregation and had no place in evaluating the due process rights of inmates confined in administrative segregation. The Second Circuit disagreed, finding Arce's argument "meritless". Arce v. Walker, 139 F.3d 329, 1998 U.S. App. LEXIS 5054, 1998 WL 119612 (2d Cir.). The Court noted that nothing in Sandin indicated that the Supreme Court intended to limit the new due process analysis to restrictions imposed on inmates for punitive as opposed to administrative purposes and thus declined to create such "a novel distinction". 1998 WL 119612 at *4. See also Powell v. Scully, 1996 U.S. Dist. LEXIS 3944, 1996 WL 145962 (S.D.N.Y.)(no reason why administrative segregation should not be considered as a less "atypical", less "significant" deprivation than disciplinary confinement).

 The Arce decision makes both legal and practical sense. At its core, Sandin, instructs courts to look at the nature and extent of the particular deprivation in deciding whether a protected liberty interest is implicated. Thus, it is the nature, of the deprivation and not the reason, for the deprivation that is central to the Sandin analysis. Of course, as Sandin makes clear, certain deprivations are a typical part of the normal incidents of prison life. In making a determination as to what is an "ordinary incident of prison life", it makes both legal and logical sense to take into account whether particular punitive deprivations are also found in non-punitive forms of prison confinement, such as administrative segregation or protective custody. But it makes little sense to hinge an individual's right to due process simply on the label prison officials choose to attach as the basis for the deprivation. See McKinnon v. Patterson, 568 F.2d 930, 937 (2d Cir. 1977)("differences in nomenclature among the various forms of punitive (or disciplinary) confinement should not be dispositive in determining whether minimal due process is required"), cert. denied, 434 U.S. 1087, 55 L. Ed. 2d 792, 98 S. Ct. 1282 (1978). Indeed, one of the reasons the Supreme Court rejected the "mandatory language" analysis of Hewitt was because it had the "undesirable effect" of discouraging States from codifying prison management procedures to avoid creating "liberty" interests thereby "conferring standardless discretion on correctional personnel". Sandin, 515 U.S. at 482. Similarly, a due process analysis that would allow correctional personnel to avoid the creation of "liberty interests" by simply assigning misbehaving inmates to a segregated confinement unit for "administrative" (as opposed to "disciplinary") reasons seems to encourage the same "standardless discretion" which the Supreme Court found offensive in Sandin. In the present case, there is no dispute that McClary spent over four uninterrupted years in conditions of confinement virtually identical to those found in disciplinary segregation. Whatever his due process rights may be, they should not be extinguishable simply by virtue of the fact that the confinement was labeled by prison officials as "administrative".

 2. In Applying Sandin, Should the Court Look at the Potential Penalty or the Actual Penalty Imposed? To establish a protectable liberty interest under Sandin, the inmate must establish that the given restraint imposes an "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin, 515 U.S. at 483. The Second Circuit has recently stressed the importance of considering the length of the restrictive confinement in deciding whether the hardships imposed were "atypical and significant". Wright v. Coughlin, 132 F.3d 133, (2d Cir. 1998)(summary judgment vacated and case remanded for failure of district court to consider duration of confinement); Brooks v. DiFasi, 112 F.3d 46, 49 (2d Cir. 1997)(same).

 Procedural due process is not a constitutional right amenable to hindsight. By shifting the focus of a due process analysis solely from whether state prison regulations created a "liberty interest" to a case by case critique of the specific hardships imposed on the inmate, Sandin spawned a difficult issue for courts, prison officials and inmates: Is an inmate's right to procedural due process measured by the potential time the inmate could spend in restrictive confinement or the time actually spent in restrictive confinement?

 In Sandin, the maximum allowable sentence the inmate faced (30 days in SHU) was also the punishment meted out by the prison officials. This relatively minor punishment stands in contrast to situations where the punishment (time in SHU) is limited only by the total time left in the inmate's sentence. In a pre-Sandin decision, the Second Circuit held that it was the potential penalty that triggered an inmate's right to procedural due process. McKinnon v. Patterson, 568 F.2d 930, 939 (2d Cir. 1977)("To be workable, the procedural requirements . . . under the due process clause must depend upon the maximum penalty that may be imposed and not upon some lesser penalty that is imposed in any particular case"), cert. denied, 434 U.S. 1087, 55 L. Ed. 2d 792, 98 S. Ct. 1282 (1978).

 Until recently, district courts within our circuit found themselves at odds over whether the logic of McKinnon was equally applicable in post-Sandin cases. Some courts adopted the McKinnon approach, reasoning that if it was only the time the inmate actually spent in SHU that triggered a protectable liberty interest, prison officials and inmates alike would never know when an inmate is entitled to a hearing with procedural due process safeguards. See e.g. Justice v. Coughlin, 941 F. Supp. 1312, 1323 (N.D.N.Y. 1996)(Pooler, J.)(using potential penalty provides a "workable framework for correction officials" and is "consistent with Sandin"); Campo v. Keane, 913 F. Supp. 814, 821 (S.D.N.Y. 1996)(noting "the recognized Second Circuit principle that due process rights must be determined with respect to the potential penalty") (emphasis supplied). Other courts rejected the potential penalty theory, reasoning that it is inconsistent with the case by case due process analysis mandated by Sandin. See e.g. Marino v. Klages, 973 F. Supp. 275, 278 (N.D.N.Y. 1997)(in light of Sandin's reasoning which limits due process protection to those cases where a certain degree of hardship is imposed, "application of the 'potential penalty' approach would be an unwarranted extension of this limitation"); Ruiz v. Selsky, 1997 U.S. Dist. LEXIS 3473, 1997 WL 137448, *6 (S.D.N.Y.)(potential penalty approach "makes no sense"); Cespedes v. Coughlin, 956 F. Supp. 454, 471-72 (S.D.N.Y. 1997)("Court finds nothing in Sandin which would suggest that courts should employ the potential penalty approach"); Morris v. Dann, 1996 U.S. Dist. LEXIS 18878, 1996 WL 732559, *4 (N.D.N.Y.)(potential penalty approach "is contrary to Sandin, which stands for the proposition that each case should be examined individually").

 The Second Circuit recently resolved this issue in Scott v. Albury, 138 F.3d 474, 1998 WL 100549 (2d Cir. 1998). While acknowledging that the Circuit's pre-Sandin precedent required consideration of the potential punishment in determining whether a liberty interest was implicated, the Court held that "Sandin is to the contrary and we follow it". 1998 WL 100549 at *4. As to the argument that only the potential penalty approach would guide prison officials on when to afford an inmate procedural due process, the Court reasoned:

Some district courts have argued that it is unworkable for states to determine whether a liberty interest has been created based on actual punishment, because states would not know in advance of the sentence whether certain procedural requirements apply in a particular case. (citation omitted). Maybe, but one assumes that states will take the precaution of providing the required level of due process to every inmate who realistically faces a ...

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