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November 20, 2002


The opinion of the court was delivered by: Lawrence E. Kahn, United States District Judge



Plaintiff Francis Auleta, Sr. ("Plaintiff"), an inmate in the custody of the New York Department of Correctional Services ("DOCS") filed a pro se complaint under 29 U.S.C. § 1983, alleging that Defendant LaFrance ("Defendant") violated Plaintiff's procedural due process rights and took retaliatory action against Plaintiff. Plaintiff was assigned to work as an inmate legal assistant at Upstate Correctional Facility ("Upstate"). Plaintiff alleges that, while performing his assigned prison job and after having received permission from prison officials, he helped another inmate named Rivera with the filing of an appeal from a decision that was rendered on a grievance that had been submitted by Rivera. (Compl. ¶ 7-8.) Plaintiff claims that Defendant later placed Plaintiff in "keeplock"*fn1 for 7 1/2 days without due process to retaliate against him for assisting Rivera with the appeal. (Id. at ¶ 11.)

Defendant filed a motion to dismiss Plaintiff's complaint pursuant to Fed.R.Civ.P. 12(b)(6). On September 24, 2002, the Honorable David R. Homer, United States Magistrate Judge, issued a Report-Recommendation pursuant to 28 U.S.C. § 636(b) and L.R. 72.3 of the Northern District of New York recommending that Defendant's motion to dismiss be granted. After ten days from the service thereof, the Clerk sent the entire file to the undersigned, including the objections by Plaintiff, which were filed on October 9, 2002.


I Standard of Review

It is the duty of this Court to "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b). "A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." Id.

II Standard for Motion to Dismiss

A court may not dismiss a pro se complaint pursuant to Fed.R.Civ.P. 12(b)(6) unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief." Weixel v. Board of Educ. of the City of New York, 287 F.3d 138, 145 (2d Cir. 2002) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). When considering a motion to dismiss, courts must accept as true the material facts alleged in the complaint. See, e.g., Cohen v. Koenig, 25 F.3d 1168, 1172 (2d Cir. 1994) (citations omitted). Moreover, when deciding whether a pro se complaint should be dismissed, "courts must construe [the complaint] broadly, and interpret [it] to raise the strongest possible arguments that [it] suggest[s]." Weixel, 287 F.3d at 146 (quoting Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir. 2000) (internal quotation marks omitted)). It is particularly important to read a pro se complaint liberally when, as here, it alleges civil rights violations. See Morales v. Mackalm, 278 F.3d 126 (2d Cir. 2002) (per curiam) ("Because Morales' complaint alleges civil rights violations and he proceeded pro se in the district court, we must construe his complaint with particular generosity.") (citing Vital v. Interfaith Med. Ctr., 168 F.3d 615, 619 (2d Cir. 1999)); Weixel, 287 F.3d at 146 (citing Weinstein v. Albright, 261 F.3d 127, 132 (2d Cir. 2000)). As such, this Court will read Plaintiff's allegations so as to "raise the strongest arguments that they suggest." Id. (quoting McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (internal quotation marks omitted)).

III Due Process Claim

Plaintiff contends that his procedural due process rights were violated when he was placed in keeplock without a hearing. The placement of an inmate in restrictive confinement must be preceded by procedural due process where "the confinement or restraint creates an `atypical and significant hardship' under Sandin [v. Connor, 515 U.S. 472 (1995)], and the state has granted its inmates, by regulation or by statute, a protected liberty interest in remaining free from that confinement or restraint." Frazier v. Coughlin, 81 F.3d 313, 317 (2d Cir. 1996) (per curiam). Plaintiff was in keeplock for a short period of time (7 ¶ days) and he does not allege that this confinement was under unusual circumstances. Magistrate Judge Homer correctly found that, based on these facts, Plaintiff failed to allege an "atypical and significant hardship" and consequently failed to state facts that might show that he has suffered an injury to a constitutionally protected liberty interest. See Williams v. Keane, No. 95 Civ. 0397, 1997 WL 527677, at *6 (S.D.N.Y. Aug. 25, 1997) (noting that "the decisions in the Second Circuit are unanimous that keeplock . . . confinement of 30 days or less in New York prisons is not `atypical or significant hardship' under Sandin" and collecting cases); see also Hynes v. Squillace, 143 F.3d 653, 658 (2d Cir. 1998) (stating that a district court need not provide a detailed explanation for its finding that a plaintiff has failed to allege a violation of a constitutionally protected liberty interest when the plaintiff was in segregated confinement for a relatively short period of time and does not allege any unusual conditions).

Plaintiff now claims that New York prison regulations create a liberty interest in remaining free from keeplock confinement without notice and an opportunity to be heard. Even if this is so, Plaintiff has still not alleged that he has suffered an atypical and significant hardship. As indicated above, the existence of a state-created liberty interest and the sufferance of an atypical hardship must both be alleged. Because Plaintiff has failed to allege the latter, his due process complaint is dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6).

IV Retaliation Claim

A. Legal Standard Governing Retaliation Claims

Plaintiff also bases his § 1983 claim on the ground that Defendant placed him in keeplock in retaliation for the authorized legal advice he gave Rivera as part of his prison work assignment. The Second Circuit has recognized that "a claim for relief may be stated under section 1983 if otherwise routine administrative decisions are made in retaliation for the exercise of constitutionally protected rights." Gill v. Mooney, 824 F.2d 192, 194 (2d Cir. 1987) (citing Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir. 1986) (per curiam)). However, because of "both the near inevitability of decisions and actions by prison officials to which prisoners will take exception and the ease with which claims of retaliation may be fabricated, [courts] ...

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