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February 16, 1999


The opinion of the court was delivered by: Kahn, District Judge.

Memorandum-Decision and Order

I. Introduction

Plaintiff pro se, Julio Giano ("Plaintiff' or "Giano"), brings this action pursuant to 42 U.S.C. § 1983 (1994) alleging that Defendants violated his right to due process by wrongfully placing him in administrative segregation while he was an inmate at Clinton Correctional Facility ("Clinton"), a maximum security prison in the New York State Correctional Services system. Specifically, Plaintiff avers that the initial decision to place him in administrative segregation and subsequent decisions to continue his placement therein were made under false pretenses. Presently before this Court are Defendants' motion for summary judgment and Plaintiffs cross-motion for summary judgment.

II. Background

Plaintiff first entered the New York State corrections system in August, 1985. Prior to this date, Plaintiff attempted to escape from the Nassau County courthouse. During the attempted escape, several court officers were severely injured. Plaintiff first entered Clinton sometime after August, 1985, but on July 28, 1986, Plaintiff was transferred from Clinton to Sing Sing Correctional Facility ("Sing Sing") in Ossining, New York. On December 9, 1986 Plaintiff and two other inmates escaped from Sing Sing. Plaintiff was captured soon thereafter and sentenced to five (5) years in the Special Housing Unit ("SHU")[fn1a] at Sing Sing. On December 23, 1987, after spending approximately one year in the SHU at Sing Sing, Plaintiff was transferred to Shawangunk Correctional Facility ("Shawangunk") in Wallkill, New York. Plaintiff spent approximately one more year in Shawangunk's SHU and was then released to the general prison population based on his good behavior.

On September 12, 1988, an unknown inmate stabbed Plaintiff in the back resulting in a serious injury to Plaintiffs right shoulder. Because of the incident and Plaintiffs refusal to voluntarily enter protective custody, Plaintiff was placed in Shawangunk's involuntary protective custody ("IPC") unit. Plaintiff spent twenty-nine (29) days in IPC and was then transferred to Attica Correctional Facility ("Attica") on October 10, 1988. Upon his arrival at Attica, Plaintiff was placed in administrative segregation because (1) he had been stabbed by an unknown inmate and (2) his escape record. On August 10, 1990,[fn2a] after six-hundred-and-seventy (670) days in administrative segregation at Attica, Plaintiff was transferred back to Clinton.

Upon his return to Clinton, Plaintiff was mistakenly placed in Protective Custody. When the mistake was discovered, Plaintiff was again placed in administrative segregation. On August 13, 1990, Defendant David Armitage "Armitage"), a sergeant in the New York Department of Correctional Services ("DOCS"), made the following recommendation:

  Due to the administration's concern regarding Inmate
  Giano's transfer to Clinton from Attica Correctional
  Facility, where he was in administrative segregation
  status, it has been requested that that status be
  retained at this facility. Inmate Giano is serving
  time for six (6) felonies, the longest term involving
  25 to Life for Murder 2 and the most recent Escape 1,
  concerning an escape on 12/9/86, from Sing Sing
  Correctional Facility. Due to this information, Escape
  from a Max A Facility, it is requested that Giano be
  placed in Administrative Segregation as he presents a

  threat to the safety and security of the facility.

Defs.' Mem. Summ. J., Ex. N. This review was followed by an Administrative Segregation Admission hearing on August 17, 1990. At the conclusion of the hearing, the hearing officer, Defendant Joseph Wood ("Wood"), upheld Armitage's recommendation to place Plaintiff in administrative segregation based on the following:

  (1) the recommendation written by Sergeant Armitage
  where it stated that inmate Giano escaped from a
  maximum security facility on December 9, 1986;
  (2) Plaintiffs verbal testimony confirming the fact
  that he escaped from Sing Sing on December 9, 1986;
  (3) Sergeant Armitage's verbal testimony concerning
  his review of plaintiffs records which confirmed that
  Giano was successful in an organized escape from Sing
  Sing and was also involved in a near successful escape
  from custody (Nassau County courthouse) which involved
  serious injury to others;
  (4) Giano's familiarity with the Clinton Correctional

Defs.' Mem. Summ J., Statement of Material Facts at ¶ 16; see also id, Ex. A. at 59. On September 11, 1990, Defendant Donald Selsky ("Selsky"), Director of Special Housing/Inmate Disciplinary Program, affirmed Defendant Wood's findings. On October 22, 1990, Plaintiff claims his counselor told him that Defendant Daniel Senkowski ("Senkowski") would release him from administrative segregation only if Giano signed a form consenting to being admitted into protective custody. Plaintiff claims he refused the offer because Senkowski would not put it into writing. On October 24, however, Plaintiff accepted Senkowski's offer because he felt his living "conditions would be much better" in Protective Custody rather than in administrative segregation. Approximately one week later, Plaintiff contends that Defendant William Costello ("Costello") and another individual met with him and told him he would be released from administrative segregation if he signed a waiver releasing Clinton from potential liability for any harm that Plaintiff might incur upon his return to the general population.

Plaintiff signed the waiver but was not then released into the general population. Instead, on November 5, 1990, Plaintiff was placed in the Protective Custody unit. On November 6, 1990, Defendant Armitage asked Plaintiff to sign a second waiver similar to the first so that he could he released to the general population. Plaintiff signed the form, but then told by Defendant Armitage approximately one hour later that he would not be released to the general population until he signed a consent to protective custody. Plaintiff refused to sign the consent and was thereafter taken back to administrative segregation. On November 8, 1990, Plaintiff contends that Defendents Senkowski, Costello, and McCormick came to his cell and told him that he would remain in administrative segregation until he consented to protective custody. Plaintiff claims that he eventually signed the consent form because he feared spending the remainder of his sentence in administrative segregation.

On November 9, 1990, Plaintiff was admitted into Clinton's Protective Custody unit. The reason given for Plaintiffs placement was that Plaintiffs "records indicate [he was] stabbed by an unknown inmate at another New York Correctional Facility. It is not known if that inmate is at this facility. For your own safety it is recommended you be placed on Protective custody status." Def's Mem. Summ. J. Ex. U. Plaintiffs status in Protective Custody was reviewed periodically and it was determined that his continued placement therein was warranted because the circumstances justifying his initial placement had not changed. Giano remained in Protective Custody until December 13, 1990. Between administrative segregation and protective custody, Plaintiff spent one-hundred and twenty-five (125) days in SHU.[fn3a] Giano alleges that his "due process right to a fair hearing before he was admitted to segregation was violated in that the hearing was nothing more than a pretext." Pl.'s Pretrial Mem. at 2, Dkt. # 69. He further contends that his "due process right to meaningful review of his continued confinement in segregation was violated in that the reviews were not done in a meaningful time and in a meaningful manner." Id. Defendants seek summary judgment on the following six (6) grounds: (1) Giano has failed to show that his period of confinement imposed an atypical and significant hardship; (2) the procedures Defendants followed afforded Giano all the process he was due; (3) Defendants have qualified immunity; (4) the evidence was sufficient to sustain ...

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