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TELLIER v. SCOTT

United States District Court, S.D. New York


February 2, 2004.

RENE TELLIER, Plaintiff, -against- WILLIE SCOTT (FORMER WARDEN); SUSAN GERLINSKI (ASSOCIATE WARDEN); MR. TRAMMEL (CAPTAIN); JESSE JAMES (CURRENT WARDEN); MR. PARRISH (TITLE UNKNOWN); and JOHN GIBSON (ASSISTANT CAPTAIN), Defendants

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

OPINION & ORDER

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. at 193 (finding no need to remand for factual findings on whether the plaintiff misunderstood the charges against him, because the record already demonstrated that he was confused and unable to prepare a defense).

  Plaintiff here states that at the time he was transferred to the SHU, he "hadn't known why they were putting [him] in there." See Deposition of Rene Tellier ("Tellier Dep."), dated July 18, 2001, at 134, attached as Exh. A to Declaration of Edward Scarvalone ("Scarvalone Decl."), dated Sept. 30, 2002. However, plaintiff also admits that it "might have run through [his] mind" that his history of escape attempts and his earlier CMC designation in the state facility accounted for his placement in the SHU. Id. at 134-35. A juror could find that plaintiff was sufficiently aware of the charges against him to mount an effective defense.

  A genuine issue of material fact exists with respect to whether plaintiff ever received the "high security/escape risk" notice. Assuming that plaintiff did receive the notice, a genuine issue of material fact still exists with respect to whether the notice was so vague as to render plaintiff actually unable to prepare a defense to the charges against him. Because of these disputed issues of fact, the Court cannot find that plaintiff was denied his right to notice as a matter of law; the Court thus denies plaintiff's motion for summary judgment with respect to Page 16 liability on notice.

  2) Initial Hearing

  In addition to requiring notice, due process also requires that an inmate placed in administrative segregation receive "an informal, nonadversary evidentiary review of the information in support of the prisoner's administrative confinement. . . ." Soto v. Walker, 44 F.3d 169, 172 (2d Cir. 1995)(internal quotation omitted). This review must take place within a reasonable time after the inmate is placed in administrative segregation. See Hewitt, 459 U.S. at 476 n.8; Soto. 44 F.3d at 172.

  Defendants claim that defendant Trammel met with plaintiff within three days of plaintiff's arrival in the SHU. See Declaration of Glenn Trammel, dated Sept. 25, 2002 ("Trammel Declaration"), ¶ 19. Plaintiff denies that this meeting took place. See Report at 19. As the Report notes, the first documented meeting with plaintiff regarding plaintiff's SHU status took place 59 days after plaintiff's initial placement in the SHU. Id. at 7; Exhibits in Support of Plaintiff's Motion for Summary Judgment on the Issue of Liability, Exh. 19. Furthermore, even if defendant Trammel met with plaintiff as early as the evening of plaintiff's arrival and placement in the SHU, defendant Trammel provides no details about the content and purpose of that meeting. See Trammel Declaration, ¶ 19.

  Judge Francis found that the question of whether the initial hearing took place within the first three days of placement, or Page 17 only after 59 days, and the question of the content of the initial review, are disputed issues of material fact. The Report recommends that summary judgment be denied on this point.

  Plaintiff objects to this recommendation. In his objection, plaintiff ignores the disputed issue of material fact regarding whether a meeting occurred within the first three days of his placement in the SHU. Because the Court agrees with Judge Francis that this genuine issue of material fact remains in dispute, plaintiff's motion for summary judgment on this point is denied. The Court notes, assuming arguendo that defendant Trammel met with plaintiff within the first three days of plaintiff's placement, defendants' failure to provide any details regarding the content of that meeting would prevent the Court from concluding that the meeting satisfied the requirements of Hewitt.

  3) Periodic Reviews

  "Administrative segregation may not be used as a pretext for indefinite confinement of an inmate." Hewitt, 459 U.S. at 477 n.9. For this reason, due process requires that prison officials engage in periodic reviews of the continuing appropriateness of confinement in administrative detention. See id. In order for a review to be constitutionally adequate, the decision-maker must be impartial. That is, the review must be conducted by a decision-maker "who, inter alia, does not prejudge the evidence and who cannot say . . . how he would assess evidence he has not yet seen." See Patterson v. Coughlin, 905 F.2d 564, 569-70 (2d Cir. Page 18 1990)(citation omitted); see also Giano, 2000 WL 876855 at *16-18.

  Defendants state that they accord inmates two types of review. One type of review, conducted outside of the presence of inmates, occurs on a weekly basis. See Report at 7. At these meetings, defendants reviewed each inmate's continued status in the SHU. The meetings could result in the transfer of inmates back into the general population, and on occasion such transfers occurred. Id. at 7-8. A second type of review occurs on a monthly basis, and involves in-person meetings between the inmate and his Segregation Review Official ("SRO"). The purpose of these meetings, mandated by BOP regulation, is to review the inmate's welfare, including his physical and mental condition.

  Plaintiff claims that defendant Gibson failed to perform two of the monthly reviews, and falsified records to hide his failure. Defendants concede that the monthly, in-person reviews are not intended to assess whether an inmate's continued placement in the SHU is appropriate, and therefore cannot serve as a basis for finding that an inmate received the periodic reviews required by Hewitt. Judge Francis agreed that the monthly reviews would not satisfy the Hewitt requirement, because they did not involve consideration of whether the reasons for SHU placement remained valid. Thus, Judge Francis focused on the weekly reviews, and concluded that although there is no dispute with respect to whether they occurred, genuine issues of material fact remain in dispute regarding whether those reviews, as they concerned plaintiff, were Page 19 pretextual or shams.

  Plaintiff first objects to Judge Francis' decision not to conclude that the monthly reviews were pretextual. However, because the monthly reviews were not intended to address whether the reasons for plaintiff's continued confinement remained appropriate, they can establish neither that plaintiff was denied due process, nor that plaintiff was afforded due process. As the Court discusses below, however, to the extent that information gathered at the monthly reviews was relevant to the appropriateness of plaintiff's continued placement in the SHU, any failure to consider that information at the weekly reviews, or failure on the part of defendant Gibson as SRO to present that information to the committee at each weekly review, may render the weekly reviews unmeaningful and constitutionally deficient. Thus, although the monthly reviews cannot themselves serve as the basis for plaintiff's due process claims, they may be relevant to determine the constitutional sufficiency of the periodic reviews that were conducted weekly.

  Plaintiff also objects to Judge Francis' conclusion that a genuine issue of material fact remains in dispute with regard to whether the weekly reviews were pretextual. Judge Francis concluded that a jury could find that "the decisionmakers [at the weekly reviews] considered the relevant information in good faith." See id. at 23. Plaintiff presents two arguments for why no jury could reach the conclusion that the reviews were genuine. Page 20

  First, plaintiff argues that Hewitt requires prison officials to consider the evidence "then-available" during each periodic review. Plaintiff argues that at the weekly reviews, defendants ignored certain newly available evidence relevant to a consideration of the continuing appropriateness of plaintiff's SHU placement. Second, plaintiff argues that defendants, who participated in the weekly reviews, were biased against plaintiff, and have admitted in depositions that they were not going to release plaintiff from the SHU regardless of whether he demonstrated changed circumstances.

  Defendants respond that Hewitt's requirement that prison officials consider the "then-available" evidence applies only to the initial review, and not to the periodic reviews. Thus, defendants argue that they were under no obligation to consider newly available evidence during the weekly reviews. Defendants further respond that the statements made during depositions reflect the professional judgment of prison officials that strong justifications existed for continuing to hold plaintiff in the SHU.

  With respect to plaintiff's first argument, defendants are correct that Hewitt does not require prison officials to permit inmates to formally submit "additional evidence and statements" at each periodic review. See Hewitt, 459 U.S. at 477 n.9. However, Hewitt also states that periodic reviews are necessary to prevent administrative segregation from "be[ing] used as a pretext for indefinite confinement of an inmate." Id. For these reviews to Page 21 perform that function, the reviews must take into account current information that relates to the appropriateness of continued SHU confinement. In the case of plaintiff, whose placement was based, in part, on his risk of escape, prison officials were required to consider any information relating to a change in his risk of escape. Plaintiff contends that he told officials that his work as an orderly afforded him access to tools that, if he wished to escape, could be used to escape. Thus, he argues that while considering whether SHU placement remained appropriate, officials ignored evidence that he exhibited good conduct while in the SHU, including evidence that he was not abusing his access to tools to attempt to escape. See Report at 22; Tellier Dep. at 252-53. Although Hewitt may not grant inmates the right to formally present evidence and testimony regarding the appropriateness of their SHU placement, Hewitt does not permit officials to ignore information relevant to that determination as it becomes available. Nevertheless, the question of whether the "evidence" referred to by plaintiff constitutes the type of evidence that should have been considered at the periodic review is an issue of fact for the jury to decide.

  With respect to plaintiff's second argument, that the decision-makers at the weekly reviews were biased, and have demonstrated their bias through deposition testimony, the Court agrees with Judge Francis' conclusion. Defendants' deposition testimony regarding how unlikely it would have been for plaintiff Page 22 to be returned to the general population of the MCC may indicate bias, or may simply indicate an objective, realistic assessment by defendants that plaintiff was not an appropriate candidate for transfer to the general population. See id. at 22-23. It will be for the fact-finder at trial to decide whether the periodic reviews were pretextual and unconstitutional. As part of this assessment, the fact-finder may consider defendant Gibson's role in determining whether plaintiff was eligible for release, and his conduct in that role.

  Because genuine issues of material fact exist with respect to the adequacy of the weekly reviews, plaintiff's motion for summary judgment on this issue is denied.

  C. Qualified Immunity

  "In general, public officials are entitled to qualified immunity if (1) their conduct does not violate clearly established constitutional rights, or (2) it was objectively reasonable for them to believe their acts did not violate those rights." Weyant v. Okst, 101 F.3d 845, 857 (2d Cir. 1996). The Court will address each of these grounds for qualified immunity in turn.

  With respect to the first ground for qualified immunity, the Second Circuit previously held in this matter that at the time of the alleged violation, plaintiff had a clearly established procedural due process right to have defendants comply with the regulation in question. See Fields, 280 F.3d at 84. Thus, defendants' alleged conduct violates a clearly established due Page 23 process right, and defendants may not claim qualified immunity under this first ground.

  With respect to the second ground, officials claiming qualified immunity bear the burden of demonstrating the objective reasonableness of their behavior. See Varrone v. Bilotti, 123 F.3d 75, 78 (2d Cir. 1997). Plaintiff argues that the Second Circuit previously ruled that defendants are not entitled to qualified immunity on this ground, because defendants egregiously violated the BOP regulation. Plaintiff's argument is without merit. When the Second Circuit considered the issue of qualified immunity, it assumed for the purposes of defendants' motion for summary judgment that plaintiff's allegations were true. Although the court stated that: it would not "confer [qualified immunity] protections on egregious violations of a federal regulation," it did not conclude that defendants had, in fact, egregiously violated the regulation. See Fields, 280 F.3d at 86."*fn7

  1) Defendants' Motion for Summary Judgment Granting Them Qualified Immunity

  Defendants argue that they are entitled to qualified immunity because no rational juror would find that defendants acted in a Page 24 manner that was objectively unreasonable. For the reasons set forth below, defendants' argument is meritless. Looking at the facts in the light most favorable to plaintiff, as the Court must on defendants' motion for summary judgment, the Court cannot now find that defendants have established, as a matter of law, that their actions were objectively reasonable.

  a) Notice

  Plaintiff never received any notice of the reasons for his initial placement in the SHU. Even if he did receive the administrative detention order that defendants contend he received, the words "high security/escape risk" were vague and ambiguous. Plaintiff was left confused as to the reasons for his confinement, and was thus incapable of preparing an adequate defense. Defendants have not demonstrated that it would have been objectively reasonable for them to have believed that it was constitutional to place plaintiff in the SHU with no notice, or inadequate notice, of the reasons for his placement.

  b) Initial Hearing

  Plaintiff further alleges that he received his first in-person review with respect to his SHU confinement 59 days after he arrived and was placed in the SHU. Defendants have not demonstrated that it would have been objectively reasonable for them to have believed that it was constitutional to hold plaintiff's initial hearing 59 days after his arrival, given that the Constitution requires a Page 25 hearing within a reasonable time.*fn8

  c) Periodic Reviews

  Plaintiff contends that the periodic reviews conducted in his case were nothing more than a sham. Plaintiff alleges that defendants have admitted to prejudging the evidence in favor of continuing to confine plaintiff in the SHU, and that they refused to consider additional evidence in determining whether his placement continued to be appropriate. Defendants have not met the burden of demonstrating that it would have been objectively reasonable for them to have believed that they were acting in a constitutional manner in prejudging plaintiff's situation, or in ignoring relevant information related to the continuing appropriateness of his SHU placement.

  2) Plaintiff's Motion for Summary Judgment Denying Defendants Qualified Immunity

  Plaintiff also moves for summary judgment to deny the defendants qualified immunity.*fn9 The Court denies that motion because, viewing the facts in the light most favorable to defendants, a jury could find that it was objectively reasonable for defendants to have believed that their acts were Page 26 constitutional.

  a) Notice

  A jury could find that plaintiff did receive the "high security/escape risk" administrative detention order, and that it was objectively reasonable for defendants to believe that the notice complied with Hewitt's notice requirement.

  b) Initial Hearing

  A jury could find that plaintiff received an initial hearing with defendant Trammel within three days of plaintiff's arrival in the SHU, and that it was objectively reasonable for defendants to believe that three days was a reasonable time after plaintiff's placement to have such a hearing.

  c) Periodic Reviews

  A jury could find that the monthly reviews of plaintiff's continuing placement in the SHU were not a sham, and that it was objectively reasonable for defendants to have believed that their conduct was constitutional.

  D. Causation

  If a plaintiff establishes a violation of due process, and defendants have failed to establish a defense of qualified immunity, the plaintiff is entitled to at least nominal damages. See Patterson v. Coughlin, 905 F.2d 564, 568 (2d Cir. 1990). However, unless the due process violation caused the deprivation of liberty, the plaintiff is limited to nominal damages. Id. That is, if plaintiff here would have been held in the SHU for 514 days Page 27 even if due process had not been violated (because, for instance, it was justified for defendants to have kept plaintiff in the SHU throughout his time in the MCC), the only remedy available for the due process violation would be nominal damages.

  In the Second Circuit, the burden generally lies on the plaintiff to establish that the due process violation caused the deprivation. See id. (contrasting the Second Circuit rule with the rule of other circuits, but noting that the burden may shift onto defendants when defendants have made it impossible for plaintiff to meet his burden). Defendants argue that plaintiff cannot establish that the alleged violation of his due process rights actually caused the deprivation of liberty. Rather, defendants argue that even if plaintiff had been afforded all due process rights, he still would have been kept in the SHU throughout his time in the MCC.

  "[T]he standard [for determining causation] is not what defendants would have decided; it is what an objective, neutral decision-maker would have decided." See Report at 24 (quoting Giano, 2000 WL 876855, at *19). Applying this standard, Judge Francis rejected defendants' argument that they would have kept him in the SHU regardless of the procedures applied, because he already found that a reasonabl[e] juror could conclude that they were biased and had prejudged plaintiff's situation. Judge Francis stated that defendants had provided no evidence that an impartial decision-maker would have done the same. Id. Page 28

  Defendants raise two objections to Judge Francis' conclusion. First, defendants argue that when plaintiff challenged his SHU detention in a pretrial hearing before United States District Court Judge Cederbaum, Judge Cederbaum declined to release plaintiff from the SHU. Judge Cederbaum, defendants argue, is an "objective, neutral decision-maker" who actually did decline to release plaintiff from the SHU-which decision establishes that any alleged due process violation on the part of defendants did not cause his placement in the SHU.

  The Court is unpersuaded by defendants' argument. First, Judge Cederbaum addressed the issue of plaintiff's confinement in the SHU after he had been in the SHU for 374 days. See Transcript of Hearing before Judge Miriam G. Cederbaum, dated Nov. 15, 1993, attached as Exh. U to Scarvalone's Decl. Plaintiff was in the SHU for an additional 140 days following the date of that hearing.

  Second, it appears from the transcript of the proceeding that Judge Cederbaum was in fact never asked to release plaintiff from the SHU. Rather, plaintiff's counsel asked Judge Cederbaum to find out from prison officials why plaintiff was being held in the SHU, and whether they knew how long his placement would continue. See id. at 270-71. Plaintiff's counsel raised this issue before Judge Cederbaum not for a ruling on whether plaintiff deserved to be transferred out of the SHU, but rather in an attempt to resolve the issue informally, so as to make it unnecessary for plaintiff to attempt to resolve it in a more formal manner. See id. at 271. Page 29 Thus, contrary to defendants' characterization of the hearing, Judge Cederbaum never rejected a request by plaintiff to be released from the SHU.

  Defendants' second argument for why an impartial decision-maker, following all proper procedures, would not have released plaintiff from the SHU is that plaintiff is similar in some relevant way to several other MCC inmates who have also served lengthy terms in administrative detention. The Court assumes that this information is offered to demonstrate that plaintiff's detention was not unusual, and thus that it is somehow more believable that he would have been kept in the SHU no matter what procedures were applied.

  The Court finds no reason to believe that plaintiff's situation is sufficiently similar to that of the inmates identified by defendants. Three of the inmates referred to were imprisoned for their role in the first World Trade Center bombing, one was a leader of the notorious Latin Kings crime organization, and another, unlike plaintiff, had previously attempted to escape from the MCC itself. See Monsalve v. Parks, No. 01 CIV 6010, 2002 WL 1359725, at *1 (S.D.N.Y. June 21, 2002). In any event, the issue of what an objective, neutral decision-maker would have done in this situation is an issue for the fact-finder to decide. The Court thus denies defendants' motion for summary judgment on the issue of causation.

  E. Plaintiff's SHU Placement was an "Atypical and Significant Hardship" under Sandin Page 30

  Under Sandin, in order for an inmate to have a constitutionally protected liberty interest in not being confined in the SHU, 1) the regulation or statute creating the interest must be sufficiently mandatory, and 2) the alleged deprivation must impose an "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." See Fields, 280 F.3d at 80. See also Sandin, 515 U.S. at 484. The Second Circuit previously considered the language in Section 541.22, and concluded that it satisfied the first part of the Sandin test. See Fields, 280 F.3d at 81.

  With respect to the second part of the Sandin test, Judge Francis stated his view that genuine issues of material fact exist with respect to the amount of time plaintiff actually spent in his cell, and the conditions of his SHU confinement. See Report at 26 n.6. Judge Francis noted that these disputed facts preclude summary judgment.

  Plaintiff objects that he is entitled to summary judgment on this issue, because the Second Circuit has held that while "there are no precise calipers to measure the severity of SHU hardship, . . . we believe that wherever the durational line is ultimately drawn, 305 days satisfies the standard." Colon v. Howard, 215 F.3d 227, 231 (2d Cir. 2000). Defendants respond that in Colon, the Second Circuit identified duration as simply one "factor" to consider in determining the atypicality and significance of the hardship imposed. Defendants argue that the other major factor, Page 31 the conditions of confinement, involves genuine issues of material fact that are in dispute.

  In considering whether the second part of the Sandin test has been met, "[b]oth the conditions and their duration must be considered, since especially harsh conditions endured for a brief interval and somewhat harsh conditions endured for a prolonged interval might both be atypical." Id. (quoting Welch v. Bartlett, 196 F.3d 389, 394 (2d Cir. 1999). For purposes of the Sandin analysis, defendants do not deny that 514 days in the SHU is a long period of time. To do so would be difficult, given Colon's reference to 305 days as satisfying the durational factor. Defendants instead argue that plaintiff's confinement in the SHU did not constitute an "atypical and significant hardship" because the conditions of his confinement were better than those typical of SHU confinement. See Report at 26 n.6.

  Specifically, in distinguishing plaintiff's treatment in the SHU from that of other inmates, defendants argue (1) that plaintiff "was permitted to reject cellmates and to occupy his cell (which normally houses two inmates) all by himself," and (2) that he was allowed to share a cell with his brother for a certain period of time. See Defendants' Objs. to R & R, at 20. However, defendants do not deny plaintiff's allegations that, like other SHU inmates, 1) plaintiff was confined to his cell for 23 hours a day during the week, and 24 hours a day on weekends, when not working as an orderly, appearing in court, or attending other specific functions; Page 32 2) Plaintiff's hands were handcuffed each time he was transported from his cell; 3) plaintiff ate all meals in his cell; 4) plaintiff was not allowed to attend educational or rehabilitation programs with other inmates; and 5) plaintiff had limited access to shower facilities. See Defendants' Statement Pursuant to Local Civil Rule 56.1(b) and (c), at ¶ 9-18. Defendants also do not deny plaintiff's claims that inmates in the general population 1) are allowed out of their cells from approximately 6 a.m. to 11 p.m., seven days per week; 2) are not handcuffed when they are transported from their cells; 3) eat their meals outside of their cells; 4) attend educational and rehabilitative programs in group settings; 5) are free to participate in recreational activities such as socializing with other inmates, watching television, and playing pool between the hours of approximately 6 a.m. to 11 p.m., seven days a week; and 6) have unlimited access to showering facilities. See id.

  The Court finds that, viewing the evidence in the light most favorable to defendants, and considering both the duration of plaintiff's confinement in the SHU and the conditions of that confinement (as compared with the conditions of other inmates' confinement in the SHU and other inmates' confinement in the general population), no genuine issue of material fact has been raised to dispute the conclusion that plaintiff's confinement constituted an "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." See Fields, Page 33 280 F.3d at 80.

  Plaintiff's confinement in the SHU was of a longer duration than that found to satisfy the second part of the Sandin test in Colon. See Colon, 215 F.3d at 231 (holding that 305-day stay in the SHU under "standard SHU conditions" constituted an "atypical and significant hardship").*fn10 The privileges defendants claim plaintiff received while in SHU confinement do not render such a lengthy confinement typical or insignificant. The Court finds that plaintiff's situation falls into the category of "somewhat harsh conditions endured for a prolonged interval," see Colon, 215 F.3d at 231, and satisfies the standards laid down in Sandin.

  The Court thus grants plaintiff's motion for summary judgment on this issue, and holds that plaintiff possessed a constitutionally protected liberty interest in not being housed in the SHU.

  F. Defendant Gibson's Personal Involvement

  Courts accept a variety of tests for determining whether a particular defendant "caused" an alleged constitutional violation. See Edmonson v. Coughlin, 21 F. Supp.2d 242, 254 (W.D.N.Y. 1998) ("A defendant will be liable if he or she directly participated in the infraction. A supervisory official[] can be held liable if he or she created a policy or custom under which unconstitutional practices occurred, allowed such a custom or practice to continue, Page 34 or failed to remedy a known violation.").

  Plaintiff does not allege that defendant Gibson was a supervisor, whose liability stems from any policy or custom instituted by him. Rather, plaintiff alleges that in defendant Gibson's role as an SRO in the spring of 1993, Gibson was charged with meeting with plaintiff each month to monitor his welfare. Plaintiff alleges that Gibson failed to perform two of these monthly reviews, and subsequently falsified records to hide his failure. Plaintiff also alleges that defendant Gibson participated in weekly reviews along with defendants Gerlinski and Trammel, in which it was decided that plaintiff would not be returned to the general population of the MCC.

  Judge Francis concluded that defendant Gibson lacked the requisite personal involvement to be held liable under Bivens. As discussed above, the Report deemed irrelevant all of defendant Gibson's acts with respect to the monthly reviews, because those reviews dealt solely with plaintiff's mental health, and not with plaintiff's eligibility for release from the SHU. The Report further concluded that defendant Gibson's level of participation in the weekly meetings was insufficient to hold him liable, because decision-making authority rested with defendants Gerlinski and Trammel; at most, Judge Francis concluded, defendant Gibson made recommendations to the decision-makers.

  Plaintiff objects to this conclusion. First, plaintiff argues that defendant Gibson's role in the monthly reviews, and defendant Page 35 Gibson's alleged falsification of two forms associated with those reviews, are relevant to the issue of whether the monthly reviews were a "sham" and denied plaintiff his due process right to meaningful periodic reviews. As the Court held above, because the monthly reviews were not conducted to assess whether the reasons for SHU confinement remained valid, they can establish neither that plaintiff was denied due process, nor that plaintiff was afforded due process.

  However, as the Court explained above, when an SRO such as defendant Gibson conducts a monthly review, information learned at that meeting can be relevant to the separate determination, made at each weekly review, of whether the reasons for an inmate's placement in the SHU remain valid. As the Court held above, although Hewitt may not require that inmates be permitted to formally present additional evidence each time a periodic review is conducted, in order for that review to have any meaning Hewitt must require prison officials to consider all evidence relevant to the determination of whether an inmate's confinement in the SHU remains appropriate.*fn11 Page 36

  Plaintiff's second objection to the Report is that defendant Gibson was part of the committee that met each week to decide, as a group, that plaintiff was not going to be released from the SHU. Defendants argue, and Judge Francis agreed, that defendant Gibson's role at these meetings was not that of a decision-maker. See Gibson Declaration, at ¶ 11 ("A decision would be made, probably by the Associate Warden [Gerlinksi] and the Captain [Trammel] (who were the highest-ranking officials at the meeting), as to whether an inmate would remain in the SHU or be returned to the general population."). Defendants argue that Gibson's role was different from the roles of the decision-makers-his role was merely to inform the decision-makers of any facts of which he had become aware that might call into question whether the facts relied upon in making the initial SHU placement are no longer reliable.

   The Court finds that genuine issues of material fact exist with respect to defendant Gibson's role in the weekly meetings. It is undisputed that defendant Gibson was subordinate to Captain Trammel, and that Captain Trammel was subordinate to Associate Warden Gerlinski. However, the parties dispute whether the decisions of the committee were made solely by defendants Trammel and Gerlinski, the two highest-ranking members of the committee, or were made collectively by all those on the committee. Because the degree of decision-making authority possessed by defendant Gibson at the weekly meetings is in dispute, the Court denies defendants' motion for summary judgment with respect to all claims against Page 37 defendant Gibson, and denies plaintiff's motion to strike Gibson's claim of qualified immunity.

   G. Defendant Parrish's Personal Involvement

   Neither party objects to Judge Francis' recommendation that all claims be dismissed with regard to defendant Parrish. The Court may adopt those portions of a Magistrate's report to which there has been no objection, unless they are facially erroneous. See Fed.R.Civ.P. 72(b). See also Pizarro v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991). The Court finds no clear error, and adopts the Magistrate's recommendation that all claims be dismissed against defendant Parrish.

  III. Conclusion

   For the reasons set forth above, the Court denies defendants' motion for summary judgment, except with regard to defendant Parrish, who is held to lack the requisite personal involvement to be held liable under Bivens. The complaint against Parrish is dismissed.

   Plaintiff's motion for summary judgment is denied with respect to defendants' liability under Hewitt and eligibility for qualified immunity. Plaintiff's motion is granted with respect to his Sandin claim. The Court therefore concludes that plaintiff possessed a constitutionally protected liberty interest in not being confined in the SHU; plaintiff was thus entitled to the due process protections articulated in Hewitt and its progeny. The parties Page 38 shall submit a joint pre-trial order no later than March 5, 2004.

   SO ORDERED.


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