court's summary judgment in favor of defendant on ground that the
court improperly resolved the conflict between sides by crediting
defendant's testimony). Therefore, summary judgment in favor of
either party on the issue of whether Ramirez's placement in SHU
worked "a major disruption in his environment," Sandin, 515
U.S. at 486, 115 S.Ct. 2293, is unwarranted.
Defendant suggests that the duration of Ramirez's confinement
in SHU precludes the court from finding that plaintiff suffered
from an atypical, significant hardship, especially in comparison
with Ramirez's overall sentence of 22 years to life. Indeed, as
defendant points out, a number of district courts within the
Second Circuit have dismissed claims where the duration of the
segregated confinement was less than one year. See Jackson v.
Johnson, 15 F. Supp.2d 341, 362 n. 8 (S.D.N.Y. 1998) (Kaplan, J.)
(collecting cases). Chief Judge McAvoy of the Northern District
of New York has gone so far as to conclude that "it now appears
that any period of segregation of one year or less affords no
protected liberty interest." Polanco v. Allan, 1996 WL
250237,*3 (N.D.N.Y. May 6, 1996). However, the Second Circuit has
recently reaffirmed the principle that there is "no bright-line
rule regarding the length or type of sanction that would give
rise to an `atypical and significant hardship'. . . ." Jenkins,
179 F.3d 19, 28. See also Ayers v. Ryan, 152 F.3d 77, 83 (2d
Cir. 1998) ("Whether or not a period of disciplinary confinement
amounts to an atypical and significant hardship is a
fact-intensive inquiry. . . ."). Mindful of this principle, the
court declines to hold that, as a matter of law, the duration of
Ramirez's confinement necessarily precludes a finding of an
atypical and significant hardship. See, e.g., Scott, 156 F.3d
at 285-288 (remanding for further fact-finding where plaintiff
was confined in keeplock for 60 days). Moreover, while the United
States Supreme Court indicated in Sandin that the length of the
inmate's overall sentence is relevant in determining whether "the
conditions suffered [are] expected within the contour of the
actual sentence imposed," Sandin, 515 U.S. at 486 n. 9, 115
S.Ct. 2293, the court cannot properly conclude on summary
judgment that the "regime to which [Ramirez] was subjected as a
result of the misconduct hearing was within the range of
confinement to be normally expected" for one serving a term of 22
years to life. See id. at 487, 115 S.Ct. 2293.
b. New York State statutes and regulations
Having found that Ramirez has created a triable issue of fact
as to whether his confinement in SHU constituted an atypical and
significant hardship, the court must now determine whether New
York has granted its inmates a protected liberty interest in
remaining free from disciplinary segregation. McGinnis argues
that there is simply no New York State law that affords inmates
an entitlement to be free from segregated confinement.
Defendant's argument, however, ignores the case law finding
exactly such a state-created interest. See, e.g., Sher v.
Coughlin, 739 F.2d 77, 81 (2d Cir. 1984) ("The state statutes
and regulations authorizing restrictive confinement as punishment
upon a finding of a disciplinary infraction will invariably
provide sufficient limitation on the discretion of prison
officials to create a liberty interest."). See also Gittens v.
Lefevre, 891 F.2d 38, 40 (2d Cir. 1989) (holding that inmates
have a liberty interest in remaining free from administrative
keeplock). Sandin does not change the validity of these
decisions; it simply limits due process protection to hardships
that are also "atypical and significant." See Gonzalez v.
Coughlin, 969 F. Supp. 256, 257 (S.D.N.Y. 1997) (Stanton, J.)
(rejecting defendants' argument that federal cases holding that
New York prison regulations afford inmates a liberty interest in
remaining free from segregated confinement are no longer good law
after Sandin); Wright v. Miller, 973 F. Supp. 390, 395
(S.D.N.Y. 1997) (Baer, J.) (same). See also Lee v. Coughlin,
26 F. Supp.2d 615, 632-33 (S.D.N.Y. 1998) (Sotomayor, J.) (holding
that New York regulations limit the exercise of New York's
discretion in placing prisoners in both punitive and non-punitive
confinement). Therefore, the court finds that New York state
regulations granted Ramirez a protected liberty interest from
remaining free from disciplinary segregation in SHU.
For the above stated reasons, defendant's motion for summary
judgment is denied. Plaintiff's cross-motion for partial summary
judgment is also denied. Parties shall submit a revised Joint
Pre-Trial Order by August 20, 1999. Any remaining discovery
disputes, if any, shall be addressed by letter to chambers by
August 6, 1999.
IT IS SO ORDERED.