The opinion of the court was delivered by: Harold Baer, Jr., United States District Judge
Plaintiff Tamika Lisbon brings suit under 42 U.S.C. § 1983 for damages. She alleges that defendants illegally imprisoned and denied her certain privileges as a result of prison disciplinary proceedings while incarcerated at Bedford Hills Correctional Facility ("Bedford Hills"). Defendants move to dismiss plaintiffs complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure ("FRCP"). For the following reasons, defendants' motion is GRANTED.
Plaintiff claims that on November 25, 2001, defendants placed her in the Special Housing Unit ("SHU"), presumably because of the violations cited against her in the misbehavior report that issued the following day. The misbehavior report charged her with drug possession, in violation of Department of Correctional Services ("DOCS") Rule 113.25, and unauthorized possession of property, which in this case was money, in violation of DOCS Rule 113.16. Pl. Compl. at 3. On November 28, 2001, a hearing was held and plaintiff was found guilty of only the unauthorized possession of property charge. Id. Plaintiff received a penalty of 30 days in SHU, which was to end on December 25, 2001, and 30 days' loss of packages, commissary and phone privileges.Id. Plaintiff does not contest the validity of the unauthorized possession charge and penalty. Defendants dismissed the drug charge, according to plaintiff, to enable defendants to more fully investigate that charge. Lisbon Affid. at 1.
Defendants, on November 28, 2001, issued a second misbehavior report to plaintiff, based on the same violation and facts as alleged in the November 26, 2001 report in connection with the drug possession charge. At the second disciplinary hearing, held on December 6, 2001, plaintiff was found guilty of drug possession and received a penalty of 90 days in SHU, to run concurrently with her 30 days of SHU confinement for the unauthorized possession charge. Complaint (December 6, 2001 disposition). In addition, plaintiff lost 90 days of privileges, e.g., rights to receive packages and access to commissary and phone, along with a recommendation that she lose 6 months' good time. Id. Plaintiff appealed the December 6, 2001 decision. On appeal, the director of inmate discipline found that there was a failure to adequately connect plaintiff to the drugs found. See id. (February 14, 2002 Memorandum). The director reversed the December 6 decision and ordered records of the charge be expunged on February 14, 2002. Id.
Plaintiff contends that her due process rights were violated when she was placed into segregated confinement for the drug charge. More specifically, after serving her first 30 days in SHU for the unauthorized possession and drug charges, plaintiff contends that defendants unlawfully forced her to spend another 21 days in SHU before they transferred her to keeplock.*fn1 She claims that she served 30 days in keeplock before the drug charge against her was reversed and she was allowed to return to normal confinement. For the alleged unlawful segregated confinement, i.e., SHU and keeplock, plaintiff seeks $6,150.00.
When considering a motion to dismiss pursuant to FRCP 12(b)(6), the Court is required to accept as true all of the facts alleged in the complaint and draw all reasonable inferences in the plaintiffs' favor. See Krimsock v. Kelly, 306 F.3d 40, 47-48 (2d Cir. 2002). A motion to dismiss should be granted only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Hamilton Chapter of Alpha Delta Phi, Inc. v. Hamilton College, 128 F.3d 59, 63 (2d. Cir. 1997) (citations and internal quotations omitted). When a plaintiff appears pro se, courts "must construe [the] pro se complaint liberally, applying less stringent standards than when a plaintiff is represented by counsel." Elliott v. Bronson, 872 F.2d 20, 21 (2d Cir. 1989). Despite this liberal standard, it is well settled that a "complaint consisting nothing more than naked assertions, and setting forth no facts upon which a court could find a violation of the Civil Rights Act, fails to state a claim under Rule 12(b)(6)." Martin v. N.Y.S. Dep't of Mental Hygiene, 588 F.2d 371, 372 (2d Cir. 1978).
To properly state a claim under § 1983 for denial of due process at a disciplinary hearing, plaintiff must "identify a liberty interest protected by the Due Process Clause of which [s]he was deprived." Jenkins v. Haubert, 179 F.3d 19, 28 (2d Cir. 1999); Williams v. Goord, 111 F. Supp.2d 280, 288 (S.D.N.Y. 2000). Second, she must show that "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). Assuming plaintiff satisfies the first two requirements, the court must then determine whether the "defendants deprived [her] of that interest as a result of insufficient process." Jenkins, 179 F.3d at 28; Baker v. Finn, 2001 WL 1338919, at *3 (S.D.N.Y. Oct. 31, 2001).
Plaintiff contends that defendants deprived her of a due process right against double jeopardy under the Fifth Amendment. Plaintiffs contention is without merit. Although plaintiff claims in her opposition to defendants' motion to dismiss that she was "found not guilty" as to the drug possession charge during the November 28, 2001 hearing, plaintiffs affidavit in support of her complaint and reported disposition from November 28, 2001 belie her claim. The disposition from the November 28, 2001 hearing reports that the drug possession charge was dismissed because the purported illegal substance had not been identified yet. Pl. Compl. (November 28, 2001 Hearing Disposition). There is no indication on the disposition that the hearing officer dismissed the drug charge because plaintiff was found innocent, as plaintiff contends. Further, in plaintiffs affidavit, she reports that a decision on the merits of the drug charge. Lisbon Affid. at I. In addition, "the double jeopardy clause is limited to criminal proceedings and [thus it] `does not pertain to prison disciplinary hearings.'" Baker, 2001 WL 1338919, at *3 (quoting Balanos v. Coughlin, 1993 WL 762112, at *13 (S.D.N.Y. Oct. 15, 1993).
Plaintiff contends that the earlier drug charge was reversed and her confinement deprived her of a protected liberty interest. Pl. Opp. Mem. at 3. The Supreme Court ruled in Sandin v. Conner, 515 U.S. 472, 483-86 (1995) that a prisoner's confinement to SHU does not automatically implicate a liberty interest. See also Tookes v. Artuz, 2002 WL 1484391, at *3 (S.D.N.Y. July 11, 2002). To prevail on the § 1983 claim, plaintiff must, inter alia, establish that the confinement created an "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Frazier v. Couglin, 81 F.3d 313, 317 (2d Cir. 1996). Although there is no bright-line rule yet "regarding the length or type of sanction that would give rise to an `atypical and significant hardship,'" Jenkins, 179 F.3d at 28, the Second Circuit and other courts in this district have all consistently required a significantly greater number of confinement days than alleged here before there may be a finding that ordinary segregated confinement constituted an "atypical and significant hardship." See, e.g., Sealey v. Giltner, 197 F.3d 578, 585 (2d Cir. 1999) (holding that 101 days in normal SHU conditions fails to meet the standard set by Sandin); Tookes, 2002 WL 1484391, at *3 (finding that 96 days is insufficient to meet the Sandin standard and noting that "courts in this Circuit routinely hold than an inmate's confinement in special housing for 101 days or less, absent egregious circumstances, does not implicate a liberty interest"); Alvarado v. Kerrigan, 152 F. Supp.2d 350, 355 (S.D.N.Y. 2001) (holding that 93 days in SHU is insufficient); Williams, 111 F. Supp.2d at 288-89 (holding that 75 days in SHU is insufficient); Trice v. Clark, 1996 WL 257578, at *3 (S.D.N.Y. May 16, 1996) (holding 150 days in SHU is insufficient). In analyzing the atypicality and hardship of the confinement, the Court must also consider the conditions of confinement. See, e.g., Sealey, 197 F.3d at 586. Here, plaintiff does not allege that the conditions of her SHU confinement were different from those ordinarily found in SHU or that the conditions of her imprisonment were "substantially more grave" than those ordinarily experienced in the general prison population. ...