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Harris v. McGinnis


September 30, 2004


The opinion of the court was delivered by: Laura Taylor Swain, United States District Judge


Pro se Plaintiff Damecha Harris, a New York State prisoner, brings this action pursuant to 42 U.S.C. § 1983. Plaintiff asserts that Defendants Lieutenant Walter Russett ("Russett"), Lieutenant Quackenbush ("Quackenbush"), and "Former Superintendent" McGinnis*fn1 ("McGinnis") (collectively, "Defendants") violated his constitutional due process rights when he was placed in keeplock confinement at the Green Haven Correctional Facility of the New York State Department of Correctional Services ("Green Haven") for 151 days. The Court has jurisdiction of this action pursuant to 28 U.S.C. § 1331.

Defendants move to dismiss Plaintiff's Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, arguing that Plaintiff's due process claims do not implicate a constitutionally-protected liberty interest, that Defendants have qualified immunity, and that Defendant McGinnis was not personally involved in the alleged violations. Plaintiff responded to the motion with a document captioned "Notice of Motion in Support of Affidavit for Summary Judgment Opposing Defendants' Memorandum of Law In Support of Motion to Dismiss" and a document captioned "Motion for Judgment as a Matter of Law. Fed. R. Civ. P. 50 (A) and (B)." The Court has construed Plaintiffs' papers principally as opposition to the motion to dismiss the complaint.

The Court has considered thoroughly all of the parties' submissions relating to the instant motion. For the following reasons, Defendants' motion to dismiss the complaint is granted insofar as Plaintiff asserts claims against the Defendants in their official capacities, and insofar as Plaintiff asserts a claim against Defendant McGinnis in his individual capacity.

Defendants' motion is denied in all other respects, and Plaintiff's summary judgment and Rule 50 motions are denied.


The following relevant facts are alleged in Plaintiff's Second Amended Complaint ("Complaint" or "Compl."). *fn2 The confinement of which Plaintiff complains resulted from two disciplinary incidents that occurred on May 2, 2000, while Plaintiff was incarcerated at Green Haven. Plaintiff was "written" up on that day by a correctional officer for destroying a cell locker and self-mutilation after the officer allegedly observed Plaintiff engaging in those activities.*fn3 Plaintiff was taken to the "(P.S.U.) Cell Sallite (sic) Unit." (Compl. ¶ 1.) Later that day, in the "P.S.U.," another correctional officer claimed to have seen something resembling a nail in Plaintiff's possession, and prepared a misbehavior report charging Plaintiff with a weapons violation, tampering with property without authorization, and self-mutilation. *fn4 Plaintiff was placed in keeplock *fn5 confinement on May 2, 2000, and was not given written notice of the reasons for his keeplock confinement until May 10, 2000, when he was served with two Inmate Misbehavior Reports. (Compl. ¶¶ 5, 12, 19, 20 and Ex. A and C.) A Tier III superintendent hearing took place on May 15, 2000, regarding the First Charge. (Compl. ¶ 1, Ex. B.) The hearing was conducted by Defendant Russett, a Correctional Lieutenant at Green Haven, who found plaintiff guilty on all charges and imposed penalties of 180 days' keeplock confinement, 180 days' loss of telephone privileges, 90 days' suspended commissary privileges, and 90 days' loss of packages. (Compl. ¶ 1, Ex. B.) A Tier III superintendent hearing on the Second Charge was held before Defendant Russett on May 22, 2000. (Compl. Ex. D.) Defendant Russett found Plaintiff guilty of at least two of the charges *fn6 and imposed penalties of an additional 90 days' keeplock, 90 days without packages and telephone privileges, and 90 days of suspended commissary privileges. (Id.) The 90-day keeplock confinement penalty for this offense was to be served beginning on October 29, 2000, immediately following the conclusion of Plaintiff's confinement for the First Charge; the other restrictions were to commence following expiration of the restrictions imposed in connection with the First Charge (Compl. Ex. D.)

Plaintiff alleges that the aforementioned disciplinary procedure was "untimely and defective" and that he was denied a fair hearing when his objections to the disciplinary procedure were ignored by Lieutenant Russett. (Compl. ¶¶ 3, 31.) Plaintiff appealed the Tier III decisions to Donald Selsky, Director of the Special Housing Unit, pursuant to 7 N.Y.C.R.R. § 254.8. (Compl. ¶¶ 4-5.) On July 19, 2000, following an appeal hearing, Selsky reversed the first Tier III determination. (Compl. Ex. E.) Selsky reversed the Tier III determination on the Second Charge on September 28, 2000. (Compl. Ex. F.) Plaintiff alleges that he was confined in keeplock in connection with the misbehavior charges for a total of 151 days.

Citing provisions of New York State regulations relating to prison inmate misbehavior and confinement proceedings, Plaintiff asserts that his rights to due process have been violated because he was entitled to written notification of reasons for his confinement within 72 hours of the commencement of that confinement and he did not receive such notification for eight days, and that he was entitled to a hearing on each of the charges within seven days of the commencement of his confinement and his Tier III hearings were not begun until May 15, 2000, and May 22, 2000, respectively. (Compl. ¶¶ 1-3, 31.) Plaintiff seeks damages for psychological harm he allegedly suffered by reason of the challenged confinement. (Id. ¶¶ 31, 37.)


I. Standard of Review for Rule 12(b)(6) Motion to Dismiss Pro Se Claims

In considering a motion to dismiss a complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the court must accept as true the material facts alleged in the complaint and draw all reasonable inferences in the plaintiff's favor. Grandon v. Merrill Lynch & Co., Inc., 147 F.3d 184, 188 (2d Cir. 1998); Torres v. Mazzuca, 246 F. Supp. 2d 334, 338 (S.D.N.Y. 2003). A motion to dismiss should only be granted 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." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957); see also Strougo v. Bassini, 282 F.3d 162, 167 (2d Cir. 2002). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995), cert. denied, 519 U.S. 808 (1996) (citing Scheuer v. Rhodes, 416 U.S. 232, 235-236, 94 S. Ct. 1683, 1686, 40 L. Ed. 2d 90 (1974)).

Complaints prepared by pro se plaintiffs should be construed liberally and held to "'less stringent standards than formal pleadings drafted by lawyers.'" Scott v. Gardner, 287 F. Supp. 2d 477, 483 (S.D.N.Y. 2003) (citations omitted). Pro se complaints should thus be interpreted "'to raise the strongest arguments that they suggest.'" Knight v. Keane, 247 F. Supp. 2d 379, 383 (S.D.N.Y. 2002) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). In a Rule 12(b)(6) motion, the court may only consider "'facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and... matters of which judicial notice may be taken.'" Leonard F. v. Israel Disc. Bank of New York., 199 F.3d 99, 107 (2d Cir. 1999) (quoting Allen v. WestPoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991)). The complaint "'must contain specific allegations of fact which indicate a deprivation of constitutional rights; allegations which are nothing more than broad, simple and conclusory statements are insufficient to state a claim under § 1983.'" Torres, 246 F. Supp. 2d at 338 (quoting Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 887 (2d Cir. 1987)).

II. Personal Involvement of Defendant McGinnis

It is well established law in the Second Circuit that "'personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.'" Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (quoting Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991)); see also Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995); Richardson v. Hillman, 201 F. Supp. 2d 222, 230 (S.D.N.Y. 2002). "To survive a motion to dismiss, plaintiff must allege that the defendants were directly involved in the alleged violations of plaintiff's constitutional rights." Torres, 246 F. Supp. 2d at 338-339.

As noted above, Plaintiff concedes that "Former Superintendent" McGinnis was improperly named as a defendant. ("Notice of Motion in Support of Affidavit..." at 1.) The Complaint is, accordingly, dismissed as against Defendant McGinnis.

III. Claims Against Defendants in Their Official Capacities

Plaintiff's claims for damages against Defendants in their official capacities are barred by the Eleventh Amendment to the Constitution of the United States. Eleventh Amendment immunity applies to state officials sued in their official capacity when the state is the real party for purposes of damages and the state does not consent to federal court jurisdiction. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 104 S. Ct. 900, 79 L. Ed. 2d 67 (1984); Davis v. New York, 316 F.3d 93, 101 (2d Cir. 2002); Trotman v. Palisades Interstate Park Comm'n, 557 F.2d 35, 38-40 (2d Cir. 1977) (stating that New York is an unconsenting state for purposes of immunity). Accordingly, Plaintiff's claims against Defendants Russett and Quackenbush in their official capacities are dismissed.

IV. Due Process Claim

To 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 ordinary incidents of prison life.' Sandin v. Conner, 515 U.S. 472, 484, 132 L. Ed. 2d 418, 115 S. Ct. 2293 (1995).

Ortiz v. McBride, No. 02-0088, 2004 U.S. App. LEXIS 17234, at *13-*14 (2d. Cir. Aug. 18, 2004). Recognizing that New York state law "'create[s] a liberty interest in not being confined to SHU,'" *fn7 the Second Circuit has set general guidelines for the evaluation of the liberty interest implications of administrative and disciplinary confinement within prisons:

[W]ith respect to 'normal' SHU [(special housing unit) solitary] confinement, we have held that a 101-day confinement does not meet the Sandin standard of atypicality. Sealey v. Giltner, 197 F.3d 578, 589 (2d Cir. 1999). The duration of SHU confinement, however, is not the only relevant factor. We have said that under abnormal or unusual SHU conditions, periods of confinement of less than 101 days may implicate a liberty interest. See Palmer v. Richards, 363 F.3d 60, 65 (2d Cir. 2004)....

Id. at *14.

Where the plaintiff was confined for an intermediate duration - between 101 and 305 days - 'development of a detailed record' of the conditions of the confinement relative to ordinary prison conditions is required.... In those situations, a district court 'must make a fact-intensive inquiry,'... examining 'the actual circumstances of SHU confinement' in the case before it without relying on its familiarity with SHU conditions in previous cases.... Disputes about conditions may not be resolved on summary judgment,... but where the conditions are undisputed, the Sandin issue should be resolved by the court as a matter of law....

In the absence of a detailed factual record, we have affirmed dismissal of due process claims only in cases where the period of time spent in SHU was exceedingly short - less than the 30 days that the Sandin plaintiff spent in SHU -and there was no indication that the plaintiff endured unusual SHU conditions.

Palmer v. Richards, 364 F.3d 60, 64-66 (2d Cir. 2004) (internal citations omitted). "Normal" SHU conditions for New York prisoners, while not precisely defined by Second Circuit case law, include cell confinement for 23 hours per day, limitation to two showers per week, limitations on visitors, telephone privileges and books, and denial of "various privileges available to general population prisoners, such as the opportunity to work and obtain out-of-cell schooling." Id. at 65 n.3.

Here, Plaintiff alleges that he was maintained in keeplock for a total of 151 days. *fn8

The Complaint and annexed exhibits reflect that the conditions of his "keeplock" status, at least during the period following the Tier III disciplinary hearing on the First Charge, included denial of telephone, package and commissary privileges. There is no indication of the number of daily hours for which he was confined to his cell nor whether he was allowed any exercise; the Complaint alleges generally that Plaintiff's "'confinement constituted an atypical; and signicant (sic) hardship.'" (Compl. at ¶ 24 (internal quotation marks and underscoring in original).) The Complaint makes no representation as to the parameters of "normal" conditions of confinement, and it is thus impossible to determine on the face of the Complaint that the keeplock conditions to which Plaintiff was subjected were not atypical within the meaning of Sandin. For this reason, and in light of the Second Circuit's instruction that "development of a detailed record" as to the nature of the confinement conditions in relation to the normal incidents of prison life is required where special confinement exceeds 101 days or there is any other indication of atypicality, it cannot be said that the Complaint fails to allege sufficiently that Plaintiff was deprived of a liberty interest.

To state a due process claim Plaintiff must also, however, allege that "'the defendant[s] deprived him of [the liberty] interest as a result of insufficient process.'" Ortiz, 2004 U.S. App. LEXIS 17234, at *13 (citation omitted). Plaintiff alleges that he was denied due process in that he was confined from May 2, 2000, was not provided with notice of the charges against him until written misbehavior reports were later served on him,*fn9 and was not afforded disciplinary hearings until May 15 (First Charge) and May 22, 2000 (Second Charge). His principal legal argument is that Defendants violated a New York State regulatory requirement that a prisoner confined to keeplock be given written notice of the charges against him within 72 hours of the commencement of confinement,*fn10 and that the timing of his disciplinary hearings violated a provision of the New York regulations requiring that "[w]here an inmate is confined pending a disciplinary hearing,... the hearing must be commenced as soon as is reasonably practicable following the inmate's initial confinement pending said disciplinary hearing..., but, in no event may it be commenced beyond seven days of said confinement without authorization of the Commissioner or designee." 7 N.Y.C.R.R. § 251-5-1(a); see also Ex. G to Compl. at 5. Plaintiff further alleges that the disciplinary hearings themselves were "invalid", "defective" and affected by "procedures errors." (Compl. at ¶ 31.) It is unclear whether Plaintiff's assertions regarding the legality of the hearing process are based solely on his contentions that they were untimely, or whether he has other issues relating to the manner in which they were conducted.

To the extent Plaintiff's due process claim can be read as premised solely on alleged violations of state procedural requirements it must fail, as

Federal constitutional standards rather than state law define the requirements of procedural due process. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541... (1985); Robison [v. Via], 821 F.2d [913, 922-23 (2d Cir. 1987)]. '[T]he fact that the State may have specified its own procedures that it may deem adequate for determining the preconditions to adverse official action,' Vitek v. Jones, 445 U.S. 480, 491... (1980), does not settle what protection the federal due process clause requires.

Russell, 910 F.2d at 78 n.1 (parallel citations omitted). Pro se pleadings are, however, to be read liberally and construed to assert the strongest legal arguments they suggest. Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). The relevant federal due process requirement, defined by the Supreme Court in Hewitt v. Helms, 459 U.S. 460, 103 S. Ct. 864, 741 L. Ed. 2d 675 (1983), is that an inmate

placed in administrative confinement... [be provided] 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.... This due process requirement may be satisfied by an informal, non-adversary review of the information supporting [the inmate's] administrative confinement, including whatever statement [the inmate] wishe[s] to submit, within a reasonable time after confining him to administrative segregation.

Russell, 910 F.2d at 77-78 (internal quotation marks and citations omitted). The factual circumstances outlined in the Complaint warrant further development as to whether Plaintiff was afforded notice of the charges against him and an opportunity to be heard within a reasonable time (within the meaning of Helms) after his confinement commenced, and are thus plead sufficiently to support the second prong of the due process analysis.

V. Qualified Immunity

Defendants further argue that the Complaint should be dismissed because they are entitled to qualified immunity. "[G]overnment officials performing discretionary functions generally are granted a qualified immunity and are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Wilson v. Layne, 526 U.S. 603, 609, 119 S. Ct. 1692, 1696, 143 L. Ed. 2d 818 (1999) (internal quotation marks and citation omitted). First, it must be determined whether the facts as alleged qualify as a violation of a constitutional right. Saucier v. Katz, 533 U.S. 194, 201-202, 121 S. Ct. 2151, 2156, 150 L. Ed. 2d 272 (2001). Second, the court must determine whether the right was "clearly established" at the time of the alleged wrongful act. Id. A right is "clearly established" for this purpose if (1) it is defined with "reasonable clarity," (2) the Supreme Court or the Second Circuit has recognized the right, and (3) a reasonable officer would have recognized that his actions were unlawful. Luna v. Pico, 356 F.3d 481, 490 (2d Cir. 2004). Once the court has determined that an action violated a constitutional right and that the law was clearly established, the court must then determine whether a reasonable objective official would perceive the conduct as unlawful within the particular circumstances. Moore v. Vega, 371 F.3d 110, 114-15 (2d Cir. 2004).

In applying the requisite standard to the present facts, the court must construe the allegations in the Complaint as true and view them in the light most favorable to the pro se plaintiff. Plaintiff alleges that he was placed in atypical keeplock confinement for 151 days, without an opportunity for notice and hearing within a reasonable time, and may also be asserting that the hearings involved other errors of constitutional dimension. As noted above, factual issues remain for development as to whether the keeplock confinement conditions were atypical. Thus, it cannot be said at this stage of the proceedings that Plaintiff cannot establish that he was deprived of a liberty interest. Defendants' entitlement to qualified immunity therefore cannot be determined on this record. See Palmer, 364 F.3d at 67 (factual issues as to typicality of confinement preclude summary judgment on qualified immunity grounds on the question of clearly established right). As to the procedural prong of the due process analysis, Plaintiff's claim relating to notice and opportunity to be heard during the initial stage of his confinement, at a minimum, presents a factual issue as to whether reasonable officials in Defendants' position could have perceived an eight-day delay in notification of the charges as reasonable within the meaning of the Helms standard. See Russell, 910 F.2d at 78 (ten-day notification delay unreasonable where defendants offered no evidence of circumstances justifying delay).

Plaintiff's claims against Defendants Russett and Quackenbush are thus sufficient to state claims against them in their personal capacities. Denial of their motion to dismiss the Complaint pursuant to Rule 12(b)(6) is not, of course, any indication that Plaintiff's claims will be able to survive a summary judgment motion brought on a record more fully developed as to the nature and typicality of Plaintiff's confinement, the manner and reasons for the timing of notice to Plaintiff of the charges against him, and/or the manner in which the disciplinary hearings were conducted.

VI. Plaintiff's Motions

The factual issues that preclude disposition of this case pursuant to Rule 12(b)(6) likewise preclude judgment in Plaintiff's favor at this stage. Plaintiff's motions for summary judgment and for judgment pursuant to Rule 50 are therefore denied.*fn11


For the foregoing reasons, Defendants' motion to dismiss the Second Amended Complaint is granted to the extent Plaintiff asserts claims against Defendant McGinnis and to the extent Plaintiff asserts claims against Defendants Russett and Quackenbush in their official capacities, and is denied in all other respects. Plaintiff's motions for summary judgment and for judgment pursuant to Rule 50 of the Federal Rules of Civil Procedure are denied in all respects.

The case remains referred to Magistrate Judge Freeman for general pretrial management.


LAURA TAYLOR SWAIN United States District Judge

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