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July 24, 1998

DONALD SELSKY and LT. D. RYAN, Defendants.

The opinion of the court was delivered by: LARIMER



 Plaintiff, Theadore Black ("Black"), a prisoner in the New York State Department of Correctional Services, brought this civil action, pro se, pursuant to 42 U.S.C. § 1983. In his original complaint, Black named only Thomas A. Coughlin, III, former Commissioner of DOCS, as a defendant. The complaint was dismissed by this court and leave to amend the complaint was denied as futile. On appeal, the Second Circuit affirmed this court's dismissal of Coughlin but vacated and remanded that part of the decision denying Black's motion to amend his complaint. Black v. Coughlin, 76 F.3d 72 (2d Cir. 1996). Subsequently, on April 17, 1996, Black filed his amended complaint with this court in which he alleges that defendant Correction Lieutenant D. Ryan ("Ryan") and defendant Donald Selsky ("Selsky"), Director of the Special Housing and Inmate Disciplinary Program, violated his Fourteenth Amendment due process rights while he was incarcerated at Southport Correctional Facility ("Southport").

 Following Black's filing of his amended complaint, the parties proceeded with discovery and the matter is now pending before me on the parties' cross-motions for summary judgment. For the following reasons, Black's motion is denied, defendants' motion is granted and Black's complaint is dismissed in its entirety.


 On or about March 14, 1990, while incarcerated at Southport, Black was served with an inmate disciplinary report charging him with the possession and concealment of several weapons in his cell. The charge stemmed from a search of Black's cell conducted on March 13, 1990 by correction officer Gridley ("Gridley"). During the course of the search, Gridley found several shanks on the inside groove of a locker door located in Black's cell.

 On March 19, 1990, a Tier III disciplinary hearing relating to the charge was commenced before hearing officer Ryan. The hearing was continued until March 28, 1990, in order to receive Gridley's testimony. The hearing was concluded on March 28, 1990. Following the hearing, Ryan found Black guilty of the charges and sentenced him to 180 days in the Special Housing Unit ("SHU"), along with a loss of package, commissary and telephone privileges and loss of 180 days good-time credits.

 Black filed an appeal of Ryan's determination to Selsky's office. On May 29, 1990, Selsky affirmed Ryan's hearing determination. Black then commenced an Article 78 proceeding in state court. Prior to the resolution of the Article 78 proceeding, Selsky administratively reversed Ryan's determination on the ground that Selsky had inadvertently failed to timely determine Black's initial appeal. By that time, however, Black had already served 180 days in SHU. *fn1"


 Black alleges that he was deprived of his liberty without due process of law in violation of the Fourteenth Amendment to the United States Constitution. Specifically, Black complains that his due process rights were violated during the course of his disciplinary hearing because: (1) Ryan was biased against Black; (2) the disciplinary hearing was not completed in a timely fashion and (3) there was insufficient proof to support Ryan's determination. Further, Black claims that Selsky violated his due process rights by initially affirming Ryan's determination. According to Black, Selsky's eventual reversal of Ryan's determination is "proof" that Selsky knew that the hearing violated Black's due process rights.


 In order to reach the merits of Black's due process claim, the Court must first conclude that Black had a protected liberty interest in remaining free from the penalties imposed. See Wolff v. McDonnell, 418 U.S. 539, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974). "Inmates' liberty interests are typically derived from two sources, the Fourteenth Amendment Due Process Clause and state statutes or regulations." Arce v. Walker, 139 F.3d 329, 333 (2d Cir. 1998) (citing Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 460, 104 L. Ed. 2d 506, 109 S. Ct. 1904 (1989)). The circumstances under which a prisoner's liberty interest arises directly under the Due Process Clause are narrow. Generally, for a liberty interest to arise directly under the Due Process Clause, the proscribed conditions of confinement must be "qualitatively different from the punishment characteristically suffered by a person convicted of crime and (have) stigmatizing consequences." Sandin v. Conner, 515 U.S. 472, 479, n.4, 132 L. Ed. 2d 418, 115 S. Ct. 2293 (1995)(internal quotation marks and citations omitted). See, e.g., Vitek v. Jones, 445 U.S. 480, 493, 63 L. Ed. 2d 552, 100 S. Ct. 1254 (1980)(involuntary commitment to mental hospital implicated liberty interest directly under Due Process Clause); Washington v. Harper, 494 U.S. 210, 221-22, 108 L. Ed. 2d 178, 110 S. Ct. 1028 (1990)(involuntary administration of psychotropic drugs implicated liberty interest directly under Due Process Clause).

 In the present case, Black's conditions of confinement in SHU were not so different from the punishment characteristically suffered by a person convicted of a crime so as to implicate a liberty interest directly under the Due Process Clause. That, however, does not end the inquiry. Liberty interests may also arise from state statutes and regulations. In order to establish a liberty interest arising under a state statute or regulation, "the inmate must establish that his confinement or restraint (1) creates an 'atypical and significant hardship ... in relation to the ordinary incidents of prison life' ... and (2) that 'the state has granted its inmates, by regulation or by statute, a protected liberty interest in remaining free from that confinement or restraint.'" Arce, 139 F.3d at 334 (internal quotation marks and citations omitted).

 In Sandin, 515 U.S. at 484, the Court held that neither Hawaii state regulations nor the Due Process clause created a liberty interest for a prisoner in avoiding thirty days' disciplinary confinement in SHU, even though confinement meant that the prisoner "had to spend his entire time alone in his cell (with the exception of 50 minutes each day on average for brief exercise and shower periods, during which he nonetheless remained isolated from other inmates and was constrained by leg irons and waist chains)." Id. at 493 (Breyer J., dissenting)(emphasis in original). In determining that the inmate's thirty day confinement did not implicate a liberty interest, the Sandin court considered that: (1) disciplinary segregation, with certain insignificant exceptions, mirrored the conditions of those inmates in administrative segregation and protective custody; (2) the confinement did not exceed similar, but totally discretionary confinement in either duration or degree; (3) the conditions at the prison where the inmate was housed involved significant amounts of "lockdown time" even for inmates in general population (anywhere between 12 and 16 hours a day); and (4) the state expunged, in part, the inmate's disciplinary record nine months after he served time in segregation, removing the possibility that the charge could have affected his chances of being paroled. Id. at 486. Thus, the Sandin court found that, under the circumstances, "the regime to which [the inmate] was subjected was within the range of confinement to be normally expected for one serving an indeterminate term of 30 years to life." Id. at 487.

 As the Court did in Sandin, I am required to examine the specific circumstances of the punishment in the case before me in order to determine whether the punishment imposed "atypical and significant hardship" on Black so as to implicate a liberty interest. See Miller v. Selsky, 111 F.3d 7, 9 (2d Cir. 1997); Brooks v. DiFasi, 112 F.3d 46, 49 (2d Cir. 1997). As part of this examination, I must consider the duration of the confinement, as well as the restrictiveness of the conditions imposed in ...

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