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February 2, 2004.


The opinion of the court was delivered by: KIMBA WOOD, District Judge


Plaintiff brings this Bivens action against defendants, alleging that he was deprived of his rights under the Due Process Clause of the Fifth Amendment when he was held for 514 days in the Special Housing Unit (the "SHU") of the Metropolitan Correctional Center (the "MCC") in violation of a BOP regulation, and without adequate notice, an opportunity to be heard, or periodic reviews of the continuing appropriateness of his placement. Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). The Court first referred this action to then-Magistrate Judge Leonard Bernikow when defendants moved to dismiss the complaint or, in the alternative, for summary judgment. Judge Bernikow recommended that the Court grant defendants' motion for summary judgment with respect to one defendant, and deny the motion with respect to all others. The Court adopted Judge Bernikow's recommendations, see Tellier v. Page 2 Scott, 49 F. Supp.2d 607 (S.D.N.Y. 1998), which decision was subsequently affirmed by the United States Court of Appeals for the Second Circuit. See Tellier v. Fields, 280 F.3d 69 (2d Cir. 2000).

After proceeding with discovery, plaintiff moved for summary judgment on the issue of defendants' liability, arguing that no genuine issue of material fact exists with regard to (1) whether defendants deprived plaintiff of his rights under the Due Process Clause, and (2) whether plaintiff's 514-day detention constituted an "atypical and significant hardship" for purposes of finding that due process protections apply. Defendant subsequently cross-moved for summary judgment on a number of grounds. Specifically, defendants argue that (1) plaintiff received the amount of process due to him under the Due Process Clause of the Fifth Amendment as defined by Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 1983); (2) even if plaintiff was denied due process, defendants are entitled to qualified immunity with regard to all claims; (3) even if defendants are not entitled to qualified immunity, plaintiff cannot demonstrate it was the denial of due process that caused him to be deprived of his liberty; and (4) in any event, defendants Robert Parrish and John Gibson lack the requisite personal involvement to be held liable in a Bivens action.

  On November 6, 1998, the matter was reassigned to Magistrate Judge James C. Francis. On March 24, 2003, after considering the aforementioned cross-motions, Judge Francis issued a Report and Page 3 Recommendation (the "Report"). The Report recommends that plaintiff's motion be denied in full, and that defendants' cross-motion be granted with respect to defendants Parrish and Gibson, and denied with respect to all other issues. Because the Report makes a recommendation with regard to dispositive motions, the Court reviews de novo those aspects of the Report to which the parties filed objections pursuant to 28 U.S.C. § 636(b). For the reasons explained below, the Court adopts in part, and rejects in part, the recommendation.

 I. The Report

  Because the facts are set forth in the Report, see Report at 3-8, and the Court assumes familiarity with the Report, the Court describes the facts here only briefly. In October 1992, plaintiff was indicted by a federal grand jury in the Southern District of New York on charges including racketeering, murder in aid of racketeering, interference with commerce by means of violence, and unlawful possession of firearms Id. at 4. In connection with those charges, plaintiff was transferred to the MCC on November 6, 1992 Id. Upon arriving at the MCC, plaintiff was placed in the SHU. Id. at 5. Many factors contributed to this decision, including plaintiff's recent history of escape attempts, the grave charges and potential sentence (life imprisonment) that he was facing, and the fact that he had been previously designated a high security inmate in a maximum security state penitentiary. Id. Plaintiff was housed in the SHU throughout his stay in the MCC, Page 4 which totaled 514 days. Id. at 8.

  Plaintiff alleges that from the time he was transferred to the MCC and placed in the SHU, until the time he was transferred from the MCC to the Federal Correctional Institution at Otisville, New York, defendants violated the BOP regulation governing the procedures to be followed when placing, and continuing to hold, an inmate in the SHU. With regard to initial placement in the SHU, the BOP regulation provides:
The Warden shall prepare an administrative detention order detailing the reasons for placing an inmate in administrative detention, with a copy given to the inmate, provided institutional security is not compromised thereby. Staff shall deliver this order to the inmate within 24 hours of the inmate's placement in administrative detention, unless this delivery is precluded by exceptional circumstances. An order is not necessary for an inmate placed in administrative detention when this placement is a direct result of the inmate's holdover status.
28 C.F.R. § 541.22(b). With respect to continuing to hold an inmate in the SHU, the regulation states:

  The Segregation Review Official will review the status of inmates housed in administrative detention. The SRO shall conduct a record review within three work days of the inmate's placement in administrative detention and shall hold a hearing and formally review the status of each inmate who spends seven continuous days in administrative detention, and thereafter shall review these cases on the record (in the inmate's absence) each week, and shall hold a hearing and review these cases formally at least every 30 days. The inmate appears before the SRO at the hearing unless the inmate waives the right to appear. A waiver may be in writing, signed by the inmate, or if the inmate refuses to sign a waiver, it shall be shown by a memorandum signed by staff and witnessed by a second staff member indicating the inmate's refusal to appear at the hearing. Staff shall conduct a Page 5 psychiatric or psychological assessment, including a personal interview, when administrative detention continues beyond 30 days. The assessment, submitted to the SRO in a written report, shall address the inmate's adjustment to surroundings and the threat the inmate poses to self, staff and other inmates. Staff shall conduct a similar psychiatric or psychological assessment and report at subsequent one-month intervals should detention continue for this extended period. Administrative detention is to be used only for short periods of time except where an inmate needs long-term protection (see § 541.23), or where there are exceptional circumstances, ordinarily tied to security or complex investigative concerns. An inmate may be kept in administrative detention for longer term protection only if the need for such protection is documented by the SRO. Provided institutional security is not compromised, the inmate shall receive at each formal review a written copy of the SRO's decision and the basis for this finding. The SRO shall release an inmate from administrative detention when reasons for placement cease to exist.

 28 C.F.R. § 541.22 (c)(1).

  Assuming arguendo that plaintiff possessed a constitutionally protected liberty interest in not being housed in the SHU, Judge Francis considered BOP regulations, and the undisputed facts, and concluded that defendants did not comply with the regulations. See Report at 10. However, he noted that the violation of a BOP regulation itself does not constitute a violation of due process. See id. at 9-15. Rather, the requirements of due process for an inmate in plaintiff's situation are those set forth in the Supreme Court's holding in Hewitt v. Helms,*fn1 which has been interpreted as Page 6 creating rights to (1) notice, (2) an initial opportunity to be heard, and (3) periodic reviews of the continuing appropriateness of placement in administrative segregation.

  Next, Judge Francis concluded that genuine issues of material fact exist with respect to whether any of plaintiff's three rights under Hewitt were violated; he thus denied summary judgment to both parties on the issue of whether plaintiff's due process rights were violated. Second, Judge Francis considered whether defendants are entitled to qualified immunity for any alleged violations of plaintiff's due process rights. Judge Francis found questions of fact regarding the objective reasonableness of defendants' actions with respect to each of the three Hewitt rights, and thus recommended that this Court deny defendants' summary judgment motion on qualified immunity. Third, Judge Francis recommended denying summary judgment on defendants' claim that any alleged violations caused no injury to plaintiff; the Report noted that to determine whether an inmate suffered injury as a result of due process violations in the administrative segregation placement and Page 7 review context, courts consider "what an objective, neutral decision-maker would have decided." Report at 24 (quoting Giano v. Kelly, NO. 89-CV-727, 2000 WL 876855, *19 (W.D.N.Y. May 16, 2000)). Judge Francis found that there are material facts in dispute concerning whether defendants had prejudged plaintiff's case when they were considering whether plaintiff deserved to remain in the SHU. See Report at 23-24. Fourth, Judge Francis recommended dismissing the claims against defendants John Gibson and Robert Parrish, because the degree of personal involvement that each had in the alleged misconduct was insufficient to cause any violation of plaintiff's due process rights, and thus cannot suffice for a Bivens action. Id. at 24-26. Finally, Judge Francis decided that because he recommended that this Court deny summary judgment on the issue of whether plaintiff's right to due process was violated, it was unnecessary to reach the issue of whether plaintiff had a constitutionally protected liberty interest in not being house in the SHU. Id. at 26 n.6. However, Judge Francis suggested that summary judgment on this issue would likely not be appropriate because disputed issues of fact exist with respect to the conditions of plaintiff's confinement in the SHU, a relevant factor in making the "atypical and significant hardship" determination.*fn2

  Defendants make two objections to the Report, both of which the Court finds to be without merit. First, defendants argue that Page 8 they are entitled to qualified immunity because no rational juror could find that defendants were objectively unreasonable in believing their conduct to be lawful. Second, defendants argue that they are entitled to summary judgment on the issue of whether the alleged violation of due process actually caused injury to plaintiff. Defendants argue that no rational juror would find that plaintiff would have been released into the general population of the MCC even if he had received the process he allegedly deserved.

  Plaintiff makes four objections to the Report, two of which have merit, and two of which are meritless.

  First, the Court finds meritorious plaintiff's objection to Judge Francis' decision to avoid ruling on whether plaintiff has established, as a matter of law, that his confinement in the SHU constituted an "atypical and significant hardship" under Sandin. Plaintiff argues that Judge Francis should have decided plaintiff's motion on this issue, and that this Court should grant summary judgment on this issue. For the reasons discussed below, the Court grants plaintiff's motion for summary judgment on this point.*fn3 Second, the Court finds meritorious plaintiff's objection that the Report was wrong to conclude that defendant Gibson lacked the requisite personal involvement to be held liable in a Bivens action. For the reasons discussed below, the Court denies Page 9 defendants' motion for summary judgment with respect to defendant Gibson.

  Plaintiff also raises two meritless objections to the Report. First, plaintiff argues that Judge Francis was wrong to conclude that the rights set forth in Hewitt, and not the procedures required by BOP regulation, determine the amount of process due to an inmate under the Due Process Clause. Plaintiff argues that a violation of the BOP regulation is a violation of due process, because the Second Circuit's earlier decision in this case explicitly held that the BOP regulation set the substantive standard for assessing the amount of process required under the Constitution. Second, plaintiff objects to the Report's recommendation that summary judgment be denied on the issue of whether plaintiff's right to due process, even under the Hewitt standard, was violated.

  The Court will consider each of the objections raised by plaintiff and defendants in the order in which Judge Francis' Report considered each issue in the case.

 II. Analysis

  A. The Substantive Standard for What Due Process Requires

  Plaintiff first argues that the Second Circuit already held in this case that amount of process due under the Due Process Clause is established by the BOP regulation governing SHU placement. Based upon Judge Francis' conclusion that defendants did not abide by the regulation, see Report at 10, plaintiff argues that the Page 10 Report erred in denying plaintiff summary judgment with respect to whether defendants' conduct violated the Due Process Clause.

  The existence of a regulation, and whether it was violated, are both important elements in a due process analysis. As the Second Circuit indicated, when determining whether a liberty interest exists for the purposes of a procedural due process claim, a court must first find that "a liberty interest [has been created] by statute or regulation." Fields, 280 F.3d at 80 (citing Sealey, 116 F.3d at 51)'. Where a federal regulation exists, and an official "glaringly disregards the very regulations that he or she is entrusted to discharge dutifully and in good faith," the official's "egregious violations" are unlikely to be protected by qualified immunity. See id. at 86.

  The court did not hold, however, that the regulation that gives rise to a constitutionally protected liberty interest also sets the standard for determining the amount of process mandated by the Constitution. In fact, it: is entirely consistent with the Second Circuit holding to find (1) that defendants' actions constituted an egregious violation of a regulation that they were entrusted to discharge in good faith, (2) that defendants would not be entitled to qualified immunity because the egregious nature of the violation belies defendants' claim that it was objectively reasonable for them to believe that they were acting in a constitutional manner, but also (3) that resort to qualified immunity is unnecessary because the acts that constituted an Page 11 egregious violation of the regulation did not constitute a violation of the due process rights enumerated in Hewitt and its progeny.

  Hewitt itself demonstrates that the Due Process Clause may be satisfied by less process than is required by the regulation that created a constitutionally protected liberty interest. In Hewitt, the Supreme Court considered a due process challenge brought by an inmate regarding his placement in administrate segregation. The Court considered regulations adopted by Pennsylvania, and held that the mandatory language used in the regulations was sufficient to create a protected liberty interest in remaining in the general prison population. See Hewitt, 459 U.S. at 471-72 (stating that "[Pennsylvania] has used language of an unmistakably mandatory character, requiring that certain procedures `shall,' `will,' or `must' be employed. . . . [T]he repeated use of explicitly mandatory language in connection with requiring specific substantive predicates demands a conclusion that the State has created a protected liberty interest.").*fn4 Once the Court concluded that a protected liberty interest existed, the Court considered, entirely without reference to the requirements of the Pennsylvania regulations, the amount of process that was required by the Due Process Clause. See id. at 472-77. The Court stated: Page 12

We think an informal, nonadversary evidentiary review sufficient both for the decision that an inmate represents a security threat and the decision to confine an inmate to administrative segregation pending completion of an investigation into misconduct charges against him. An inmate must merely receive some notice of the charges against him and an opportunity to present his views to the prison official charged with deciding whether to transfer him to administrative segregation. Ordinarily a written statement by the inmate will accomplish this purpose, although prison administrators may find it more useful to permit oral presentations in cases where they believe a written statement would be ineffective. So long as this occurs, and The decisionmaker reviews the charges and then-available evidence against the prisoner, the Due Process Clause is satisfied.
Hewitt, 459 U.S. at 476 (footnote omitted); id. at 496 (Stevens, J., dissenting) (observing that while the Court recognized a liberty interest on the basis of "mandatory" language in a Pennsylvania regulation, it "locate[d] the due process floor at a level below" the level mandated by that very regulation). Cf. Holcomb v. Lykens, 337 F.3d 217, 224 (2d Cir. 2003) (stating "[a]lthough state laws may in certain circumstances create a constitutionally protected entitlement to substantive liberty interests, state statutes do not create federally protected due process entitlements to specific state-mandated procedures.") (internal citations omitted).

  B. Liability for Due Process Violations Under Hewitt

  Plaintiff's second objection is that even under the substantive requirement of due process established in Hewitt, plaintiff is entitled to summary judgment on the issue of defendants' liability. Based on the Supreme Court's holding in Page 13 Hewitt, an inmate's rights with respect to confinement in administrative segregation include the rights to (1) notice of the reasons for confinement, see Hewitt, 459 U.S. at 476, (2) a hearing within a reasonable time following the transfer to administrative segregation, see id. at 476 n.8, and (3) periodic review of the reasons for confinement that are not "a pretext for indefinite confinement[,]" see id. at 477. Judge Francis found that genuine issues of material fact remain in dispute with regard to whether each of these rights were violated.

  1) Notice

  When an inmate is placed in administrative segregation, due process requires that he receive "some notice of the charges against him and an opportunity to present his views to the prison official charged with deciding whether to transfer him to administrative segregation." Id. at 476. The notice must be "more than a mere formality." Taylor v. Rodriguez, 238 F.3d 188, 192 (2d Cir 2001) (citing Benitez v. Wolff, 985 F.2d 662, 665 (2d Cir. 1993).

The effect of the notice should be to compel "the charging officer to be [sufficiently] specific as to the misconduct with which the inmate is charged" to inform the inmate of what he is accused of doing so that he can prepare a defense to those charges and not be made to explain away vague charges set out in a misbehavior report.
Taylor, 238 F.3d at 192-93 (eating McKinnon v. Patterson, 568 F.2d 930, 940 n.11 (2d Cir. 1977))

  Defendants claim that on the day that plaintiff was placed in the SHU, he received an administrative detention order that Page 14 provided him with sufficient notice of the reason(s) for his placement. See Report at 5-6. With regard to the reason for plaintiff's placement in the SHU, the administrative detention order states simply "high security/escape risk." Id. at 5. Plaintiff denies having received this order. Id. at 6.*fn5

  Assuming arguendo that plaintiff received the administrative detention order, the Court cannot now determine whether this notice complied with Hewitt. As Judge Francis pointed out, the notice provided here was "more terse and less informative" than that found to be unconstitutional in Taylor. See id. at 17.*fn6 In Taylor, the notice stated: "past admission to outside law enforcement about involvement with Latin Kings/recent tension in B-Unit involving gang activity/statements by independent confidential informants," Taylor, 238 F.3d at 190. As Judge Francis correctly concluded, the Taylor court held that the notice there was constitutionally Page 15 inadequate not only because it was vague, but also because the inmate in Taylor was actually confused about the charges against him and was unable to prepare a defense. See id. ...

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