United States District Court, W.D. New York
September 14, 2004.
LaSHAUN WITHROW, a/k/a Jabbar Withrow, Plaintiff,
E.R. DONNELLY, et al., Defendants.
The opinion of the court was delivered by: DAVID LARIMER, Chief Judge, District
DECISION AND ORDER
Plaintiff, Jabbar Withrow, appearing pro se, commenced this
action under 42 U.S.C. § 1983. Plaintiff, an inmate in the
custody of the New York State Department of Correctional Services
("DOCS"), alleges that defendants all of whom are or were DOCS
employees violated his constitutional rights in a number of
ways while plaintiff was incarcerated at Wende Correctional
Facility ("Wende") in 1999 and 2000.
Defendant Thomas Schoellkopf has moved for judgment on the
pleadings dismissing the claims against him.*fn1 Because
resolution of this matter will require reference to matters
outside the pleadings, defendant's motion is denied. DISCUSSION
A motion for judgment on the pleadings pursuant to FED. R. CIV.
P. 12(c) is analyzed under the same standard applicable to a
motion to dismiss for failure to state a claim under FED. R. CIV.
P. 12(b)(6). See Sheppard v. Beerman, 94 F.3d 823, 827 (2d Cir.
1996). Accordingly, judgment on the pleadings is appropriate only
if, drawing all reasonable inferences in favor of the non-moving
party, it is apparent from the pleadings that no material issues
of fact need to be resolved and that the moving party is entitled
to judgment as a matter of law. Id. In deciding a motion for
judgment on the pleadings, a court may consider the pleadings and
exhibits attached thereto, and statements or documents
incorporated by reference in the pleadings. See Brass v.
American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir.
Here, plaintiff alleges that Schoellkopf, a DOCS hearing
officer who presided over a disciplinary hearing against
plaintiff in November 2000, improperly denied plaintiff several
witnesses at the hearing. At the conclusion of the hearing on
November 8, Schoellkopf found plaintiff guilty of certain
charges, and sentenced him to 120 days keeplock.*fn2
Complaint ¶ 25. Schoellkopf's decision was administratively
reversed on January 18, 2001. Complaint ¶ 29. Plaintiff's
confinement in keeplock, then, lasted 71 days.*fn3 "[T]o present a due process claim, a plaintiff must establish
(1) that he possessed a liberty interest and (2) that the
defendant(s) deprived him of that interest as a result of
insufficient process." Giano v. Selsky, 238 F.3d 223, 225 (2d
Cir. 2001) (citation and internal quotation marks omitted).
Prison discipline implicates a liberty interest when it "imposes
atypical and significant hardship on the inmate in relation to
the ordinary incidents of prison life." Sandin v. Conner,
515 U.S. 472, 484 (1995).
Here, Schoellkopf argues that he is entitled to judgment on the
pleadings because "plaintiff does not allege that he was
subjected to any unusually onerous conditions beyond the fact
that he was confined in keeplock status for 77 days." Defendant's
Memorandum of Law (Docket #12) at 4. Defendant contends that
absent some additional egregious circumstances, confinement for a
period of 77 days simply cannot, as a matter of law, amount to an
"atypical and significant hardship" on the inmate.
Defendant implicitly recognizes, then, that the duration of
confinement is not the only relevant factor in determining
whether that confinement constitutes an "atypical and significant
hardship." See Ortiz v. McBride, ___ F.3d ___, 2004 WL 1842644,
at *5 (2d Cir. Aug. 18, 2004) ("We have said that under abnormal
or unusual SHU conditions, periods of confinement of less than
101 days may implicate a liberty interest") (collecting
Although there are no bright-line rules for this inquiry, then,
the Second Circuit has advised district courts to consider, in
addition to the length of confinement, whether "the conditions
[of confinement] were more severe than the normal . . . conditions
[of such confinement] . . . or a more fully developed record
showed that even relatively brief confinements under normal SHU
conditions were, in fact, atypical." Palmer v. Richards,
364 F.3d 60, 65 (2d Cir. 2004); Sealey v. Giltner, 197 F.3d 578,
586 (2d Cir. 1999) (emphasis added).*fn5
Defendant, however, has not provided any support for his
assertion that plaintiff was housed under normal keeplock
conditions. In addition, there is no evidence in the record as to
the nature of plaintiff's confinement as compared to the ordinary
conditions of prison life, administrative confinement, or
protective confinement. See Welch v. Bartlett, 196 F.3d 389,
393 n. 4 (2d Cir. 1999) ("Whether the conditions of Welch's
confinement constitute an atypical and significant hardship
requires that they be considered in comparison to the hardships
endured by prisoners in general population as well as prisoners
in administrative and protective confinement"). It is possible,
then, depending on the facts, that plaintiff's confinement in
keeplock could meet the Sandin standard of atypicality. See,
e.g., Palmer, 364 F.3d at 66 (77-day SHU confinement could
implicate due process rights where plaintiff alleged that he was
deprived of his property, personal clothing, grooming equipment,
hygienic products, reading and writing materials, communication
with his family, personal food and vitamin supplements, and
placed in mechanical restraints).
Therefore, the Court cannot decide the issue in the context of
a motion for judgment on the pleadings. A more appropriate
vehicle for resolution of this issue is a motion for summary
judgment, where the Court may rely on matters outside the
pleadings, including affidavits from persons with knowledge that
address the conditions under which plaintiff was confined and how
those conditions compared to conditions imposed on the general population and
similar administrative confinements. Palmer,
364 F.3d at 66.*fn6
Defendant's motion for judgment on the pleadings (Dkt. #11) is
IT IS SO ORDERED.