Applying these standards to the instant case, I find that plaintiff has
failed to sufficiently allege an atypical and significant hardship. A
number of district courts in this Circuit have found that periods of SHU
confinement around or exceeding 93 days did not constitute a deprivation
under Sandin. See Williams, 111 F. Supp.2d at 289 (75 days confinement);
Jackson v. Johnson, 15 F. Supp.2d 341, 361-62 (S.D.N.Y. 1998) (99 days);
Trice v. Clark, No. 94 Civ. 6871 (SAS), 1996 WL 257578 at "3, 1996 U.S.
Dist. LEXIS 6644, at *8 (S.D.N.Y. May 16, 1996) (150 days). Taken in
conjunction with the Second Circuit's decisions in Sealey and Colon, the
cases show a consensus in this Circuit that an inmate's confinement in
the SHU for 101 days or less — without further deprivation —
does not constitute an atypical or significant hardship.
Nor has plaintiff alleged conditions that elevate his confinement to
the level of deprivation required under Sandin.*fn10 The restrictions
experienced by plaintiff — loss of phone privileges, one hour of
exercise a day, three showers per week — are characteristic of SHU
confinement in the New York State prison system. See Williams v. Goord,
111 F. Supp.2d 280, 289 (S.D.N.Y. 2000) (citing N.Y. Comp.Codes R. &
Regs. tit. 7, §§ 300.1-14, 302, 304.3, 304.5 (1999)). These
conditions, while perhaps undesirable, "generally do not impose [an]
atypical and significant hardship because [they] remain within the
normal range of prison custody." Trice, 1996 WL 257578 at "2, 1996 U.S.
Dist. LEXIS 6644, at *8 (internal quotation marks omitted). Given the
nature of his SHU confinement, plaintiffs allegations thus do not, as a
matter of law, amount to an atypical or significant hardship under
Sandin. Accordingly, plaintiffs procedural due process claims against
Kerrigan and Galgano must be dismissed. This reasoning applies to all
four of plaintiffs claims, as all four claims are premised on an alleged
protected liberty interest, an interest that is simply not implicated by a
93-day stay in the SHU.*fn11
For the foregoing reasons, defendants' motion to dismiss is granted,
and the complaint is dismissed with prejudice. The Clerk of the Court
shall enter judgment accordingly.
*fn2 Although plaintiff is now incarcerated at Collins Correctional
Facility, all events relevant to the complaint took place at Sing Sing
*fn3 A Tier 3 hearing is a prison procedure in which "the most serious
violations of institutional rules" are adjudicated. Colon v. Howard,
215 F.3d 227, 229 n. 1 (2d Cir. 2000) (quoting Walker v. Bates,
23 F.3d 652, 654 (2d Cir. 1994)).
*fn4 Alvarado was Sing Sing to Southport on September 9. (comp. ¶
*fn5 According to plaintiff, he spent 93 day's in the SHU in "23 hour
lock-up" and was subjected to a variety of restrictions, including only
three ten-minute showers per week, handcuffs and leg irons when
transported outside his cell, one hour of exercise a day in a "cage-like
structure," and loss of telephone, packages, commissary, recreation,
religious services, and "plaintiff's fiancee and marriage." (Comp. ¶
*fn6 Plaintiff also requested that the Court appoint fellow inmate
Anthony Gill as plaintiff's guardian ad item "to assist pro se plaintiff
throughout the pending action." This request was denied on January 11,
*fn7 Defendants were originally to move for judgment on the pleadings in
July 2000, but they failed to comply with the briefing schedule or to
request an extension. Notwithstanding this failure to timely file the
motion for judgment on the pleadings, the Court permitted defendants to
file their motion no later than October 13, 2000. Defendants did
*fn8 Because I find that the complaint should he dismissed for failure
to state a claim under § 1983. I need not address defendants'
*fn9 Nevertheless, the Colon court also indicated that it "d[id] not
exclude the possibility that SHU confinement of less than 101 days could
be shown on a record more fully developed than the one in Sealey to
constitute an atypical and severe hardship under Sandin." Colon, 213 F.3d
at 232 n. 3.
*fn10 I note that the facts of plaintiff's confinement are not in
dispute for the purposes of this motion, as I must assume the allegations
of the complaint to be true.
*fn11 In paragraphs 40 and 42 of the complaint, plaintiff also mentions
the Eighth Amendment in passing, together with a reference to the
Fourteenth Amendment. The allegations of paragraphs 40 and 42. However,
make it clear that plaintiff is in actuality asserting due process
claims, for the reasons set forth above, no such claim exists on the
facts alleged here.