The opinion of the court was delivered by: David G. Larimer United States District Judge
Plaintiff Derrick Anderson, 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, alleges that defendants violated his rights under the Eighth and Fourteenth Amendment by improperly confining him for 60 days in the Special Housing Unit ("SHU") at the Orleans Correctional Facility ("Orleans") without cause, and then failed to correct the error when he brought the violation to their attention. Plaintiff, who was transferred from Riverview Correctional Facility ("Riverview") to Orleans, claims that he completed concurrent SHU sentences at Riverview and had been released back to population. Plaintiff alleges that when he arrived at Orleans, however, defendants mistakenly determined that he had 60 outstanding SHU days left to serve and housed him accordingly.
Defendants initially moved for judgment on the pleadings pursuant to FED. R. CIV. P. 12(c), arguing that, assuming plaintiff's allegations were true, no constitutional violation occurred. Because resolution of that issue required analysis of the two-part test set forth in Sandin v. Conner, 515 U.S. 472 (1995), as well as reference to evidence outside the pleadings, I denied defendants' motion. I ruled that the issue should be addressed in the context of a motion for summary judgment. Anderson v. Beaver, No. 01-CV-6536L, 2004 WL 2026457, *2 (W.D.N.Y. Sept. 9, 2004).
Defendants have now moved for summary judgment (Dkt. #41) pursuant to FED. R. CIV. P. 56. Plaintiff has cross-moved for summary judgment (Dkt. #45).
I. Summary Judgment: General Principles
Rule 56(c) of the Federal Rules of Civil Procedure provides that a moving party is entitled to summary judgment "if 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." Rule 56(e) further provides that:
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.
II. Due Process Claim Under Sandin
Plaintiff alleges that he was improperly housed in SHU confinement for 60 days without cause or a hearing, and that his confinement occurred under conditions that were atypical and severe. It is well-settled that to claim a violation of due process rights, an inmate must establish interference with a protected liberty interest by satisfying a two-part test: (1) the confinement or restraint must create an atypical and significant hardship, and (2) the state must have granted a liberty interest by statute or regulation to be free from that confinement or restraint. Frazier v. Coughlin, 81 F.3d 313, 317 (2d Cir.1996) (citing Sandin, 515 U.S. at 484).
The pertinent question here is whether the first element of the test is satisfied.*fn1 Defendants argue that they are entitled to summary judgment because prison disciplinary records showed that, when plaintiff arrived at Orleans, he had not yet completed all SHU time imposed at Riverview, as the result of disciplinary hearings held in January 2001. Defendants also argue that plaintiff makes no allegations that his due process rights were violated in connection with those disciplinary hearings. Finally, as in their previous motion, defendants argue that, as a matter of law, 60 days in SHU in a New York State correctional facility does not constitute an atypical or significant hardship sufficient to create a protected liberty interest that warrants due process protection. (Dkt. #41).
As I previously ruled, to determine whether plaintiff's due process rights have been violated, the duration of the confinement 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' . . . ." Ortiz v. McBride, 323 F.3d 191, 195 (2d Cir.2003); see also Colon v. Howard, 215 F.3d 227, 231 (2d Cir.2000).
Although there are no bright-line rules for this inquiry, the Second Circuit has advised district courts that SHU confinements of fewer than 101 days, like the one at issue here, "could constitute atypical and significant hardships if the conditions were more severe than the normal SHU conditions . . . or a more fully developed record showed that even relatively brief confinements under normal SHU conditions were, in fact, ...