The opinion of the court was delivered by: David G. Larimer United States District Judge
Plaintiff, Troy Brooks, appearing pro se, filed the complaint in this action under 42 U.S.C. § 1983. Plaintiff, an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), has sued several DOCS officials and employees, alleging that his constitutional rights were violated in connection with certain incidents that occurred in December 2003 at Southport Correctional Facility. Defendants have moved for summary judgment.
On December 8, 2003, Brooks was moved from a Special Housing Unit ("SHU") Level III cell to an SHU Level I cell. Inmates in Level I cells are subject to more stringent restrictions than those in Level III cells. For example, Level I inmates have to remain in restraints during their exercise periods, while Level III inmates do not. Dkt. #24 at 7, 8. Ten days later, Brooks was moved back to Level III, and his Level III privileges were restored.
Defendants contend that Brooks was moved to Level I pending an investigation of a report that plaintiff had damaged an electrical outlet plate in his cell. After ten days, however, it was discovered that a misbehavior report had never been filed regarding the matter, meaning that there was no basis for his continued confinement in Level I, so Brooks was moved back to Level III. Apparently no further action regarding the alleged property damage was ever taken.
In the instant action, plaintiff alleges that his ten-day confinement in Level I, in the absence of a misbehavior report, violated his right to due process. Plaintiff also alleges that he was subjected to cruel and inhuman punishment in various ways, including the denial of adequate food. In addition, he alleges that defendant Correction Officer Frisbie assaulted him, in the presence of several other officers, in retaliation for plaintiff's complaints about certain matters.
I. Summary Judgment: General Principles
Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The Court's role in deciding a summary judgment motion is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The Court "must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor." Sologub v. City of New York, 202 F.3d 175, 178 (2d Cir. 2000) (internal quotations omitted). Where, as here, the plaintiff is proceeding pro se, the court must "read the pleadings AAA liberally and interpret them to raise the strongest arguments that they suggest." Corcoran v. New York Power Auth., 202 F.3d 530, 536 (2d Cir. 1999) (internal quotations omitted).
In evaluating an inmate's due process claim with respect to confinement within prison, a court must consider "'(1) whether the plaintiff had a protected liberty interest in not being confined ... and, if so, (2) whether the deprivation of that liberty interest occurred without due process of law.'" Tellier v. Fields, 280 F.3d 69, 79-80 (2d Cir. 2000) (quoting Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir. 1997)). See also Taylor v. Rodriguez, 238 F.3d 188, 194 (2d Cir. 2001) (even though inmate plaintiff "did not receive the process that was due, he cannot succeed on his [due process] claims if he fails to establish a protected liberty interest"). An inmate has a protected liberty interest in not being confined only if "the deprivation ... is atypical and significant and the state has created the liberty interest by statute or regulation." Tellier, 280 F.3d at 80 (quoting Frazier v. Coughlin, 81 F.3d 313, 317 (2d Cir. 1996)); accord Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir. 2000). Although determining whether a particular confinement "imposes [an] 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), will involve factual determinations, Tellier, 280 F.3d at 80, "the ultimate issue of atypicality is one of law." Sealey v. Giltner, 197 F.3d 578, 585 (2d Cir. 1999).
Among the factors to be considered are: "(1) the effect of disciplinary action on the length of prison confinement; (2) the extent to which the conditions of the disciplinary segregation differ from other routine prison conditions; and (3) the duration of the disciplinary segregation imposed compared to discretionary confinement." Wright v. Coughlin, 132 F.3d 133, 136 (2d Cir. 1998) (citing Sandin, 515 U.S. at 484).
While the Second Circuit has "not established a bright-line rule as to how lengthy a ... confinement will be considered atypical and significant," Sims v. Artuz, 230 F.3d 14, 23 (2d Cir. 2000), the court in Sealey, 197 F.3d at 589-90, held that confinement of 101 days in SHU did not meet the Sandin standard. Nonetheless, the Second Circuit's "cases 'make clear that duration is not the only relevant factor. The conditions of confinement are a distinct and equally important consideration in determining whether a confinement in SHU rises to the level of "atypical and severe hardship ... ."'" Palmer v. Richards, 364 F.3d 60, 64 (2d Cir. 2004) (quoting Ortiz v. McBride, 323 F.3d 191, 195 (2d Cir. 2003) (per curiam)). Therefore, "[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." Sealey v. Giltner, 197 F.3d 578, 586 (2d Cir. 1999) (citation omitted). See also Ortiz v. McBride, 380 F.3d 649, 654 (2d Cir. 2004) ("unusually harsh conditions" may implicate liberty interest even for relatively short periods of SHU confinement), cert. denied, 543 U.S. 1187 (2005).
In the case at bar, defendants argue that the conditions of plaintiffs' Level I confinement, such as denial of telephone and candy privileges, haircuts, and exercise without restraints, were not severe enough to warrant due process protection. Defendants neglect to mention, however, that plaintiff alleges that he was regularly denied food as well. The amended complaint contains a list of the officers who were assigned to plaintiff's area on each day of his Level I confinement. It appears that each day was broken up into three "tours," presumably each eight hours in length, with one officer per tour. Twenty-three of the twenty-nine entries state that the officer on that particular tour "did not feed the Plaintiff." Dkt. #4-1 at ...