The opinion of the court was delivered by: Lawrence E. Kahn, United States District Judge
MEMORANDUM-DECISION AND ORDER
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.
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)).
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).
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] ...