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
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
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
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
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 ...