The opinion of the court was delivered by: KAPLAN
LEWIS A. KAPLAN, District Judge.
Plaintiff pro se Joe Jackson, a New York inmate, brings this action pursuant to 42 U.S.C. § 1983 seeking monetary and injunctive relief stemming from allegedly false disciplinary charges brought against him and his subsequent transfers to various prisons, both of which Jackson contends the defendant corrections officers precipitated in retaliation for Jackson's constitutionally protected activities. Jackson's wife, plaintiff Ruby Jackson, alleges psychological and economic damage resulting from her husband's transfers. Before the Court is the defendants' summary judgment motion. For the reasons that follow, the defendants' motion for summary judgment is granted in part and denied in part.
In January 1996, while incarcerated at Fishkill Correctional Facility ("Fishkill"), Jackson requested to be placed in protective custody to "avoid possible problems" with other inmates. At a meeting with prison officials to assess Jackson's need for protective custody, defendant Johnson allegedly presented him with a list of fellow inmates' names and asked him to implicate the inmates as his harassers. Jackson refused. The next day, Jackson was placed in protective custody. While escorting him to the unit, Johnson allegedly threatened Jackson for refusing to implicate one of the inmates.
A few hours after Jackson arrived in protective custody, Johnson was assigned to pack up Jackson's personal belongings from his open cube located in a dorm for approximately 60 inmates. While thus engaged, Johnson allegedly found in Jackson' s cubicle a razor "that had the end and guards broken off exposing the blade."
After determining that the razor could be used as a weapon, Johnson issued a misbehavior report which charged Jackson with violating prison regulations.
A Tier III disciplinary hearing was held on the charge in the misbehavior report. Jackson was found guilty and sentenced to 99 days of "keeplock" and loss of privileges. Jackson alleges that, also as a result of the guilty finding, he was "hit at the parole board with two additional years" and denied his "property," "legal materials," and "access to the law library."
Jackson contends, moreover, that he was forbidden "access to vocational, educational, recreational and rehabilitative therapy, and programs," restrictions were placed on his exercise, he was confined to a cell for 24 hours a day for more than 150 days, and "he was forced to wear the same one set of state greens, day after day, week after week, being unable to wash them because he had nothing to change into."
Jackson's efforts to appeal the disciplinary charge were unsuccessful. His prison administrative appeals were denied, and his Article 78 proceeding was dismissed for failure to timely serve the petition.
Jackson then filed this action under 42 U.S.C. § 1983. The Court understands this pro se litigant to allege that he was denied due process of law because (1) the razor was planted in his belongings and the charges fabricated in retaliation for his refusal to implicate his fellow inmates. (2) the evidence introduced against him was "tainted" in that the defendants did not follow a DOCS directive in regard to the search and, in any case, the only evidence introduced at the hearing was a photocopy of the razor rather than the razor itself, and (3) because his appointed assistant refused to help him prepare a defense. Jackson alleges that the defendants retaliated against him also by transferring him to various prisons.
The defendants move for summary judgment. The Magistrate Judge to whom the case was referred recommended granting summary judgment, and Jackson objects to the report and recommendation.
It should be noted that Jackson's complaint raised also a number of allegations concerning his treatment while incarcerated at Attica Correctional Facility ("Attica"), and in later submissions Jackson contended that he was mistreated also while at Auburn Correctional Facility ("Auburn"). By Order of June 12, 1997, this Court severed Jackson's claims regarding the period during which he was incarcerated at Attica and transferred those claims to the Western District of New York where Attica is located. The Court at that time made clear also that any claims Jackson intended to raise regarding his treatment while at Auburn were to be addressed to the Northern District of New York. Jackson, however, has reasserted before this Court several of his grievances concerning Attica and Auburn and has made other complaints without specifying where the offending conduct occurred. In passing on this motion, the Court has assumed, as it must, that all conduct not specifically stated to have occurred at Attica or Auburn took place at Fishkill.
Due Process Challenge to the Disciplinary Hearing
The defendants' motion for summary judgment on Jackson's due process challenge to the prison disciplinary hearing relies on four grounds: (1) that Jackson has failed to demonstrate that his confinement posed an "atypical and significant hardship" as required by Sandin v. Conner,6 (2) that Edwards v. Balisok7 bars Jackson's claim, (3) that Jackson did not demonstrate that the procedures employed at the disciplinary hearing fell short of those required in Wolff v. McDonnell8 and finally, (4) that the defendants are entitled to qualified immunity.
The logical starting point for analysis is the defendants' belated argument
that they are entitled to summary judgement on the ground that Jackson failed to allege "any facts to suggest that the duration or conditions of his segregated confinement amounted to an atypical and significant hardship" as required by the Supreme Court's decision in Sandin v. Conner.10
To establish a due process violation "it is necessary to prove that the state has created a protected liberty interest and that the process due was denied."
The Supreme Court in Sandin v. Conner considered whether prisoners have protected liberty interests in prison disciplinary proceedings such that they are entitled to due process in those hearings. The Court found that, although "States may under certain circumstances create liberty interests which are protected by the Due Process Clause[,] these interests will be generally 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."
Following Sandin, the Second Circuit articulated a two-part test governing due process challenges to prison disciplinary proceedings. "To prevail, [the plaintiff] must establish both that the confinement or restraint creates an 'atypical and significant hardship' under Sandin, and that the state has granted its inmates, by regulation or by statute, a protected liberty interest in remaining free from that confinement or restraint."
Factors bearing on the "atypical and significant hardship" inquiry include: (1) the effect of disciplinary action on the length of prison confinement, (2) the extent to which the conditions of the disciplinary segregation differ from other ...