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September 20, 2005.

PEDRO ALICEA, Plaintiff,
WADE HOWELL, Vocational Supervisor, Tier III Disciplinary Hearing Officer, NYS DOCS, Orleans County Correctional Facility, et al., Defendants.

The opinion of the court was delivered by: DAVID LARIMER, Chief Judge, District


Plaintiff, Pedro Alicea, 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 his constitutional rights were violated in a number of respects in connection with a disciplinary proceeding against him in January and February 2003 at Orleans Correctional Facility ("Orleans"), after a urine sample provided by plaintiff tested positive for opiates. Defendants, all of whom at all relevant times were DOCS employees, have moved for summary judgment.


  On January 20, 2003, pursuant to DOCS regulations, plaintiff was directed by a correctional officer to provide a urine sample for drug testing. Plaintiff alleges that after he gave the urine sample to the officer, a white powdery substance could be observed in the urine. The urine was then tested, and came up positive for opiates. Plaintiff was issued a misbehavior report for drug use, and a Tier III disciplinary hearing was commenced on January 27. After the hearing ended on February 4, 2003, Hearing Officer Wade Howell found plaintiff guilty of using drugs, and imposed a penalty of 545 days' confinement in the Special Housing Unit ("SHU"), 36 months' loss of privileges, and a recommendation of 24 months' loss of good time.

  Plaintiff filed an administrative appeal of Howell's decision, alleging various defects in the hearing procedures. Donald Selsky, the DOCS Director of Inmate Discipline and Special Housing, upheld the determination of guilt on March 19, 2003, but modified the penalty to 365 days of SHU confinement, 12 to 36 months' loss of various privileges, and a recommendation of 24 months' loss of good time.

  Plaintiff, both pro se and through Prisoners' Legal Services of New York, requested Selsky to reconsider his determination because of alleged defects in the urinalysis procedures that had been followed. Plaintiff also advised Selsky that he was going to commence an Article 78 proceeding over these matters, which he did in Orleans County Supreme Court in June 2003. Selsky states that "[a]fter the Article 78 proceeding had been filed, [he] took a further look at the hearing record and issued an administrative reversal of the tier III hearing, . . . in which [Selsky] determined that reversal of the tier III hearing was warranted in light of the `inconsistent testimony at the hearing concerning test procedures' that were not resolved to [his] satisfaction." Selsky Decl. (Dkt. #41) ¶ 14. Selsky directed that "records containing references to [plaintiff's] hearing are to be expunged." Selsky Decl. Ex. FF. Selsky's decision reversing the determination of guilt was issued on August 13, 2003. Plaintiff alleges that at that point, he had been confined to SHU since February 4, 2003, and was released on August 18, 2003, for a total of 195 days' confinement in SHU as a result of the determination of guilt on the drug charge.

  Plaintiff filed the complaint in this action on October 16, 2003. He alleges that he was denied his rights to due process and to equal protection in a number of ways in connection with the disciplinary hearing, and that one defendant, Barbara Gautieri, retaliated against him for having exercised his right to petition the government for redress, in violation of his rights under the First Amendment to the United States Constitution. In addition to Gautieri, plaintiff has sued Hearing Officer Howell, Director Selsky, Orleans Superintendent John Beaver, and DOCS Commissioner Glenn Goord.*fn1


  I. Due Process Claims

  Plaintiff alleges that he was denied procedural due process during the disciplinary proceedings, for a host of reasons. Analysis of these claims "proceeds with two questions. `[T]he first asks whether there exists a liberty or property interest which has been interfered with by the State; the second examines whether the procedures attendant upon that deprivation were constitutionally sufficient.'" Shakur v. Selsky, 391 F.3d 106, 118 (2d Cir. 2004) (quoting Kentucky Dep't of Corrs. v. Thompson, 490 U.S. 454, 460 (1989)). 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).

  The duration of SHU confinement is a relevant, but not the only, factor with respect to whether such confinement is "atypical." Ortiz v. McBride, 380 F.3d 649, 654-55 (2d Cir. 2004); see also Palmer v. Richards, 364 F.3d 60, 64-65 (2d Cir. 2004) ("we have explicitly avoided a bright line rule that a certain period of SHU confinement automatically fails to implicate due process rights") (citing Sims v. Artuz, 230 F.3d 14, 23 (2d Cir. 2000); Colon v. Howard, 215 F.3d 227, 234 (2d Cir. 2000)). Here, plaintiff's 195-day confinement falls within what the Second Circuit has described as an "intermediate" range, Palmer, 364 F.3d at 65, which ordinarily would require "`development of a detailed record' of the conditions of the confinement relative to ordinary prison conditions is required." Id. In the case at bar, however, plaintiff has alleged that his conditions of confinement were harsher in a number of respects from other inmates' within SHU, and at least for purposes of their summary judgment motion, defendants do not appear to dispute those allegations, nor do they appear to dispute that plaintiff had a protected liberty interest in not being confined to SHU. Accordingly, the Court will proceed to consider whether plaintiff received the process that was due him.

  In general, "due process requires that a prisoner be given specific factual notice of the charged misbehavior for which he faces discipline, a summary of the substance of any adverse evidence reviewed ex parte by the hearing officer, and a statement of reasons for the discipline imposed." United States v. Abuhamra, 389 F.3d 309, 326 (2d Cir. 2004) (citing Sira v. Morton, 380 F.3d 57, 70, 74-76 (2d Cir. 2004)). The Court of Appeals for the Second Circuit has described these requirements as "minimal." Richardson v. Selsky, 5 F.3d 616, 621 (2d Cir. 1993) (citing Wolff v. McDonnell, 418 U.S. 539 (1974)).

  Here, plaintiff has set forth a laundry list of alleged procedural defects at the disciplinary hearing, including lack of legal assistance, insufficiency of the evidence, denial and exclusion of certain evidence and witnesses, hearing officer bias, and failure to follow certain DOCS regulations. Plaintiff also alleges that the urine sample that he provided had been adulterated and was unreliable.

  Having reviewed the evidence in the light most favorable to plaintiff, I conclude that, even drawing all reasonable inferences in his favor, plaintiff has not shown the existence of any genuine issue of material fact as to these allegations, and that defendants are entitled to summary judgment. First, as to plaintiff's right to assistance, the Second Circuit has "note[d] that an inmate's right to assistance is limited." Silva v. Casey, 992 F.2d 20, 22 (2d Cir. 1993). For example, there may be "circumstances [in which] an inmate will be unable to marshal evidence and present a ...

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