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September 30, 1998

THOMAS A. COUGHLIN III, et al., Defendants.

The opinion of the court was delivered by: LARIMER



 This action is brought pursuant to 28 U.S.C. § 1983. Plaintiff alleges that the defendants violated his constitutional rights, while he was confined at Attica Correctional Facility ("Attica"). Defendants include Thomas A. Coughlin, then Commissioner of New York State Department of Correctional Services ("DOCS"), Attica Superintendent Walter R. Kelly, and other supervisory staff, correction officers and civilian staff at Attica.

 Pending before the Court is defendants' motion for summary judgment. For the following reasons, defendants' motion is granted.


 The plaintiff, Samuel Edmonson, is an inmate in the custody DOCS. In 1990, he was convicted of two counts of murder in the second degree, and given a prison sentence of seventy-five years to life. Amended Complaint, Document No. 20, PP23-24.

 Edmonson was committed to DOCS' custody in July, 1990. On July 16, 1990, he was transferred to Attica. Upon arrival, he was placed in administrative segregation ("AS") in the facility's Special Housing Unit ("SHU"). Amended Complaint P24. Three days later, he was served with an AS recommendation form, which gave the following reason for his confinement.

After review of documentation and confidential information pertaining to this inmate and to his highly publicized case, including profligate escape attempts, it is determined that his presence in general population would pose a threat to the safe and secure operation of the facility.

 Amended Complaint P26, Defendants' Motion for Summary Judgment, Exhibit 6(A). The following day, Edmonson was interviewed by Lt. George. Edmonson denied that there was any reason for him to be in AS. Amended Complaint P26, H3 *fn1" Lt. George filed a report of his interview, H3; however, Edmonson's AS confinement continued.

 A hearing to review the basis for Edmonson's placement in AS was conducted by Capt. Roy Henneberg on July 22, 1990. The hearing focused on the two sources mentioned in the AS recommendation, a confidential informant, and a series of newspaper articles that reported an escape plan during Edmonson's criminal trial. Edmonson asked whether he would have an opportunity to review the confidential information. H7. The hearing officer responded:

the confidential information is held in camera and what that means is that it can be reviewed by the person that you send any appeal to departmentally . . . they would then review the confidential information and if in their opinion, they felt that it was substantial enough to maintain you in admin. seg., they would again hold it in camera . . . . Then if you decided to go to state or federal courts, the people that could review the confidential information then would be the judge or judges involved in any case. They would review the confidential information. At each step a determination would be made as to whether or not the confidential information is sufficient to [support] the determination.


 Edmonson contested the accuracy of the newspaper articles, saying that they were "all propaganda." H5. The articles describe a plot to hijack a helicopter from a heliport in New York, and to land the helicopter at the Brooklyn House of Detention, where Edmonson was housed during his trial. The articles also describe the extensive precautions taken by city and Federal law enforcement officers in response to the reported plot. Copies of the articles, which were introduced as exhibits at the hearing, are included as part of Exhibit 6(C).

 Edmonson asserted that the trial judge had said that he did not believe the articles, but had to take precautions. H5. Capt. Henneberg responded that he understood the judge's response, and suggested that "the administration of this facility also has to take precautions." S5-6.

 Later in the hearing, the Capt. Henneberg adverted to the notoriety of Edmonson's case. Initially, Edmonson stated that he did not feel that his case was more notorious than other Attica inmates' cases. T18. However, he acknowledged that he had been "stabbed seven times as a result of media attention . . . I was attacked by some inmates who tried to extort me." Id. Wounds from the knife attack, which occurred in the holding center in New York, required 75 stitches to close. Id. Edmonson also acknowledged that at least some Attica inmates would be familiar with the newspaper reports. Id.

 In response to an inquiry regarding restrictions in AS, Henneberg informed Edmonson that he would be subjected to most of the rules that apply to disciplinary SHU.H15-16. He then rendered his decision, finding that Edmonson should remain in AS, subject to periodic review. H20, Exhibit 6(C). The determination was based on the newspaper articles, as well as "confidential information reviewed by this hearing officer and available for administrative or judicial review." Id. Edmonson filed an administrative appeal of the AS determination, which was affirmed on September 25, 1990. Amended Complaint P31.

 Subsequent to the hearing, Edmonson's AS confinement was subject to review by an Administrative Segregation Review Committee ("ASRC"), pursuant to DOCS' regulations. The committee issued its recommendations in weekly memoranda. *fn2" The weekly entries for Edmonson all indicate the same basis for continuing his AS confinement, that due to his highly publicized case, and the reports of escape attempts, Edmonson's presence in general population would pose a threat to safety and security of facility. Exhibit 10.

 Deputy Superintendent Hall, chairman of the ASRC, acknowledged that its meetings took place "outside of plaintiff's presence and participation," Hall Affidavit, Exhibit 5, P20. Edmonson did not appear before the ASRC, and apparently did not submit any evidence or statement to the committee. There is no provision in DOCS' regulations for notice to AS prisoners of the ASRC reviews, or for submission of evidence to the committee. However, Corrections Counsellor Hermann, a committee member, states that Edmonson could have submitted any concerns or comments to his counselor, who would forward them to the ASRC." Herrmann also asserts that Edmonson could have sent a "tab" or note to the ASRC stating his position regarding his AS confinement. She states that she does not recall Edmonson ever availing himself of such access to the ASRC. Herrmann Aff., Exhibit 7, PP15-18. Edmonson alleges that he attempted to send tabs to the ASRC, an assertion apparently confirmed by Supt. Kelly. Plaintiff's Affidavit, Document No. 50, P65; Kelly Aff. PP46-50.

 The weekly ASRC recommendations were submitted to Supt. Kelly, who then made the determination to continue Edmonson's AS confinement. Kelly Affidavit, PP34-36. Edmonson asserts that he did not receive notice of the ASRC recommendations, or of Supt. Kelly's review or decisions. Amended Complaint P41. Nothing in the record contradicts that assertion.

 Edmonson remained in AS at Attica until March 22, 1991, when he was transferred to Wende Correctional Facility ("Wende"). He was released to general population shortly after his transfer to Wende. Id. P32.


 The complaint sets forth eight claims. Four claims relate to the AS hearing, one concerns the pre-hearing interview and three claims challenge the ASRC review process. Seven claims are based on the Due Process Clauses in the United States, and New York Constitutions. The eighth claim is based on DOCS' regulations. The merits of such claims are discussed below.

 Defendants base their summary judgment motion on the following grounds: (1) the claims are time barred; (2) plaintiff's AS confinement did not implicate a liberty interest; (3) there was no denial of due process at the hearing or in post-hearing reviews of plaintiff's AS status; (4) the defendants were not personally involved in any alleged Constitutional deprivation and (5) the defendants are entitled to qualified immunity from liability for damages. In addition to the grounds raised by the defendant, the court will also address the question of its subject matter jurisdiction over Edmonson's state law claim.

 I. Summary Judgment Standards

 Federal Rule of Civil Procedure 56(c) provides that summary judgment is warranted where "there is no genuine issue of any material fact and . . . the moving party is entitled to a judgment as a matter of law." A "genuine issue" exists "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Rule 56(e) provides that a party opposing a motion for summary judgment "may not rest upon the mere allegations or denials of the adverse party's pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial."

 In deciding a motion for summary judgment, the evidence and the inferences drawn from the evidence must be "viewed in the light most favorable to the party opposing the motion." Adickes v. S.H. Kress and Co. 398 U.S. 144, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). "Only when reasonable minds could not differ as to the import of evidence is summary judgment proper." Bryant v. Maffucci 923 F.2d 979, 982 (2d Cir. 1991). However, a summary judgment motion will not be defeated merely on the basis of a "metaphysical doubt" about the facts, Matsushita Elec. Indus. Co. v. Zenith Radio Corp. 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986), or of "conjecture or surmise" Bryant 923 F.2d at 982.

 II. Statute of Limitations

 A civil action brought pursuant to 28 U.S.C. § 1983 is governed by the state statute of limitations applicable to personal injury actions. Wilson v. Garcia 471 U.S. 261, 279-280, 85 L. Ed. 2d 254, 105 S. Ct. 1938 (1985). In a state such as New York, in which there is more than one statute of limitations for personal injury actions, the residual or general statute of limitations should be applied. Owens v. Okure 488 U.S. 235, 251, 102 L. Ed. 2d 594, 109 S. Ct. 573 (1989); Murphy v. Lynn 53 F.3d 547, 548 (2d Cir. 1995). Accordingly, Plaintiff's § 1983 action is governed by the three-year statute of limitations prescribed by Civil Practice Law and Rules ("CPLR") § 214(5) (McKinney's 1990).

 Plaintiff's claims are based on his continuous AS confinement between July 17, 1990 and March 22, 1991. Plaintiff thus asserts a continuing violation of his rights, for statute of limitations purposes. Cornwell v. Robinson 23 F.3d 694, 703 (2d Cir. 1994). His claims accrued, and the statute began to run at the time of his release from Attica's AS, March 22, 1991. Id.

 Although the complaint was filed by the clerk of the court on March 24, 1994, three years and two days after the claims had accrued, such claims are not barred by the statute of limitations. Generally, pleadings are deemed filed on the date that they are actually received by the clerk of the court. However, a prisoner's pro se § 1983 complaint is deemed filed, for statute of limitations purposes, when it is delivered to prison officials for transmittal to the court. Dory v. Ryan 999 F.2d 679, 682 (2d Cir. 1993); Houston v. Lack 487 U.S. 266, 270, 101 L. Ed. 2d 245, 108 S. Ct. 2379 (1988).

 This exception to the general rule is required because of the unique difficulties faced by pro se prisoners, who can not take steps other litigants can take to monitor the transmission of their papers. Because of their confinement, inmates have no choice but to rely on prison staff to file their legal papers, and are at the mercy of such staff, should there be any delay in forwarding papers to the court. Dory 999 F.2d at 682; Houston 487 U.S. at 275.

 For statute of limitations purposes, therefore, the relevant date is the date that Edmonson delivered his complaint to the appropriate prison official for forwarding to the court. That date is not evident from the record. However, a review of Edmonson's other submissions in the present action suggests that transmission to the court from the facility typically takes at least two days. Edmonson's complaint therefore, is deemed filed within the statute of limitations.

 III. Liberty Interest

 The Supreme Court has held that a prisoner's confinement in SHU *fn3" does not necessarily implicate a liberty interest protected by Due Process. Rather, a liberty interest

will be generally limited to freedom of restraint which, while not exceeding the [prison] 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.

 Sandin v. Conner 515 U.S. 472, 484, 132 L. Ed. 2d 418, 115 S. Ct. 2293 (1995).

 As Sandin suggests, a liberty interest may be derived either from the Due Process Clause itself, or from state statutes and 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). There are rare instances in which a condition "exceed[s] the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force." Sandin 515 U.S. at 484. The Sandin decision cited two such instances: transfer of a prisoner to a mental hospital, as in Vitek v. Jones 445 U.S. 480, 493, 63 L. Ed. 2d 552, 100 S. Ct. 1254 (1980); and involuntary medication of a prisoner with psychotropic drugs as in Washington v. Harper 494 U.S. 210, 221-222, 108 L. Ed. 2d 178, 110 S. Ct. 1028 (1990). In those cases, the inmate was confronted with a situation qualitatively different from incarceration, as that term is commonly understood. Sandin 515 U.S. at 484, 115 S. Ct. at 2300.

 Since transfer to SHU is not such an "unexpected" event as to implicate the Due Process Clause of its own force, Edmonson must satisfy a two part test. He must demonstrate that his SHU confinement imposed "an atypical and significant hardship . . . in relation to the ordinary incidents of prison life"; and must also show that the statute or regulation authorizing his ...

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