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Zimmerman v. Seyfert

July 19, 2007

NICHOLAS ZIMMERMAN, PLAINTIFF,
v.
GEORGE SEYFERT, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge

MEMORANDUM-DECISION and ORDER

In this amended civil rights complaint,*fn1 Plaintiff alleges a variety of Due Process; First Amendment; and Eighth Amendment claims allegedly committed by the Defendants, and resulting from an incident in which Plaintiff was being investigated for an escape attempt at Sing Sing Correctional Facility (Sing Sing). (Dkt. No. 36). Presently before the Court is Plaintiff's motion for partial summary judgment and Defendants' cross motion for summary judgment pursuant to FED. R. CIV. P. 56. (Dkt. Nos. 105, 121). Plaintiff has responded in opposition to Defendants' cross-motion. (Dkt. No. 128).

DISCUSSION

1. Summary Judgment

Summary judgment may be granted when the moving party carries its burden of showing the absence of a genuine issue of material fact. FED. R. CIV. P. 56; Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990)(citations omitted). "Ambiguities or inferences to be drawn from the facts must be viewed in the light most favorable to the party opposing the summary judgment motion." Id. However, when the moving party has met its burden, the nonmoving party must do more than "simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).

At that point, the nonmoving party must move forward with specific facts showing that there is a genuine issue for trial. Id. See also Burt Rigid Box v. Travelers Prop. Cas. Corp., 302 F.3d 83, 91 (2d Cir. 2002)(citations omitted). However, only disputes over facts that might affect the outcome of the suit under governing law will properly preclude summary judgment. Salahuddin v. Coughlin, 674 F. Supp. 1048, 1052 (S.D.N.Y. 1987)(citation omitted).

2. Facts

A. Due Process

Although Plaintiff begins his complaint with a discussion of his May 15, 2003 transfer from Sing Sing to Shawangunk Correctional Facility (Shawangunk) and his subsequent placement in Administrative Segregation (Ad Seg) at Shawangunk, there is additional background necessary for an understanding of the facts surrounding Plaintiff's claims. A great deal of material has been submitted by both Plaintiff and Defendants in support of their motions, and the court will attempt to summarize these submissions. Plaintiff's deposition was taken on April 8, 2006,*fn2 and many of the Defendants have submitted affidavits. Plaintiff has filed transcripts of portions of the criminal trial at which he as convicted of attempted escape based upon many of the facts that underlie the claims in this case. (Dkt. No. 128, Plaintiff's Exhibits, Pt.1).

On May 7, 2003, a corrections officer at Sing Sing advised Defendant Darren Daughtry, an Investigator with the New York State Police, that an unknown individual had entered Sing Sing, dressed in a correction uniform and had presented false identification, indicating that he was Corrections Officer Anthony White. Daughtry Aff. ¶ 2. Defendant Daughtry traveled to Sing Sing to obtain more information about the incident. Id.

Defendant Daughtry learned that the officers had questioned the man's credentials and had escorted him to the executive offices for further investigation. Id. The man was carrying a bag containing additional corrections uniforms. Id. After being escorted to the executive offices, the man asked to use the bathroom and managed to leave the prison without being detected. Id. As a result of this incident, the New York State Police, with the assistance of other agencies, began a search for this individual. Id.

Defendant Daughtry states that the next day, he learned that the Ossining Police Department had interviewed people who were in the area of the prison following the incident. Id. ¶ 3. Defendant Daughtry reviewed the names and descriptions of those interviewed, and one person, Tony Dubose, matched the description of the individual who had entered the facility with false credentials. Id. The New York State Police located Mr. Dubose, arrested him on May 12, 2003, and questioned him about the incident.

Mr. Dubose told Defendant Daughtry that a woman named Jatanya offered to pay Dubose $15,000.00 to help a man, known as "Puzz," escape from Sing Sing. Id. ¶ 4. The plan was that Mr. Dubose would dress as a corrections officer, enter the prison with the false credentials, and arrange for the escape. Id. Mr. Dubose stated that he attempted to carry out the plan, but failed and left the prison after he asked to use the bathroom. Id. Mr. Dubose told Defendant Daughtry that Jatanya and another woman, named Tamara, were waiting for him in a rental car. Id.

Defendant Daughtry states that he contacted an officer at Sing Sing who informed him that Plaintiff's nickname was "Puzz" and regularly received visits from Jatanya Belnavis and Tamara Johnson. Id. ¶ 5. The New York State Police located the two women. Id. When questioned, Jatanya Belnavis identified Corrections Officer Quangtrice Wilson as having been involved in the plan. Id. ¶ 6. Officer Wilson was also interviewed and admitted that she agreed to provide Plaintiff with information about the daily operation and lay-out of the facility and allowed a digital picture to be taken of her shield and identification card. Id. Defendant Daughtry believed that Plaintiff's friend, Latrina Boyd, also assisted in obtaining the false credentials. Id. ¶ 7.

During his investigation, Defendant Daughtry communicated with Department of Correctional Services (DOCS) Deputy Inspector General (IG), Defendant George Seyfert. Id. ¶ 8. Defendant Daughtry states that his investigation of this incident began on May 7, 2003 and "in view of the number of people involved in the conspiracy," the investigation remained open until the end of January 2004, when the matter was submitted to a Grand Jury. Id. ¶ 9. Plaintiff was indicted, and on April 8, 2005, a jury found him guilty of various offenses connected with the escape attempt.*fn3 Id. at ¶ 10. Plaintiff was sentenced on June 7, 2005. Id. Plaintiff, however, claims that Defendant Daughtry supplied false information to the officials at Shawangunk regarding the incident and then, on February 10, 2004, violated Plaintiff's due process rights by arresting him without probable cause to believe that Plaintiff had attempted to escape. AC ¶¶ 46-47.

Defendants have also submitted the affidavit of Deputy IG Seyfert. Seyfert Aff. The affidavit includes a description of the Office of the IG and its functions. Seyfert Aff. ¶¶ 1-4. Defendant Seyfert states that among other functions, the IG is responsible for investigating allegations of violations of DOCS rules and regulations, and the New York State Penal Law by both staff and inmates. Id. at ¶ 3. The IG is also responsible for assisting other law enforcement agencies outside of DOCS and making sure that substantiated incidents are referred to the appropriate agency for review, possible disciplinary action, and/or criminal prosecution. Id. ¶¶ 3-4.

In his affidavit, Defendant Seyfert states that his office was notified a short time after the May 7, 2003 incident. Id. ¶ 7. The case was referred to Defendant Seyfert in his capacity as a Deputy IG for one of the Internal Affairs Units of the office. Id. Defendant Seyfert assigned two senior investigators to the case and immediately sent them to Sing Sing. Id. The New York State Police and the local police were notified. Id. Defendant Seyfert states that on May 14, 2003, he and one of his senior investigators met with investigators of the New York State Police, and during that meeting, Plaintiff was identified by the New York State Police as a suspect in the May 7, 2003 escape attempt. Id. ¶ 9.

On May 15, 2003, Plaintiff was transferred to Shawangunk. In an affidavit, Defendant Joseph Smith, Superintendent of Shawangunk, states that prior to Plaintiff's arrival at Shawangunk, Smith spoke with Defendant Seyfert. Smith Aff. ¶ 5. During that conversation, he and Defendant Seyfert discussed various issues regarding Plaintiff, including the potential security risk that he posed in light of the attempted escape from Sing Sing. Id. Defendant Smith states that, during that conversation, he learned the information surrounding the escape attempt and Plaintiff's potential involvement. Id. ¶ 6.

It was based on the information provided by Defendant Seyfert that Defendant Smith decided that Plaintiff should be placed in administrative segregation upon his arrival at Shawangunk, and to then be given a hearing regarding the administrative segregation placement. Id. Defendant Smith states that he based his decision on the information that the escape attempt involved "accomplices outside the facility, who breached Sing Sing's security by concealing their identities using fake DOCS officials uniforms and credentials." Id. Defendant Smith also stated that he took into account the information that Plaintiff had developed a personal relationship with a corrections officer who provided Plaintiff with information regarding the daily operation and lay-out of the facility. Id.

Defendant Smith states that it was because of this "sophisticated scenario" that he believed Plaintiff posed a threat to the safety and security of the facility, warranting administrative segregation. Id. ¶ 7. Administrative segregation involves restricted privileges*fn4 and close monitoring of inmates. Id. Defendant Smith states that if Plaintiff had been given all of the privileges in general population, he could have potentially abused those privileges by smuggling contraband or by contacting potential witnesses and interfering with the criminal investigation. Id. ¶ 8. Defendant Smith states that he was also concerned that Plaintiff could attempt to plan another escape, and the additional restrictions were necessary to prevent Plaintiff from contacting any potential accomplices. Id.

Defendant Smith states that based on all the above information, he orderedPlaintiff's placement in administrative segregation, pending a hearing. Id. ¶ 9. Defendant Smith specifically states that Defendant Seyfert did not order Defendant Smith to place Plaintiff in Ad Seg. Id. Defendant Sergeant Lutz prepared Plaintiff's Ad Seg report based on Defendant Smith's order, and Defendant Deputy Superintendent for Security (DSS) Maly authorized the Ad Seg report. Smith Aff. ¶ 9 & Ex. A. However, it was ultimately Defendant Smith's decision to place Plaintiff in segregation. Id. Plaintiff received the Ad Seg report on May 17, 2003. Id.

The Amended Complaint alleges that Defendant Seyfert "directed" Defendant Smith to place Plaintiff in administrative segregation without due process. AC ¶ 30. Plaintiff further alleges that Defendant Lutz prepared an insufficient Ad Seg report, which failed to inform Plaintiff of the date, time, and place of the "incident." AC ¶ 31. Plaintiff states that Defendant Maly authorized the report and "failed to cure" the violations.

On May 22, 2003, Plaintiff was afforded his first hearing on the administrative segregation recommendation. The documents associated with this hearing have been submitted as Dvorin Declaration, Ex. B. The hearing ended on May 25, 2003. The hearing officer was Defendant Squillace, and Plaintiff's chosen employee assistant was Defendant Wilkins. Id. Ex. B at 9, 11. Plaintiff has included as an exhibit the list of documents and witnesses that he requested from Defendant Wilkins, together with Defendant Wilkins's responses to those requests. Plaintiff's Ex. B (Attached to Dkt. No. 105). Plaintiff alleges that Defendant Wilkins violated Plaintiff's due process rights by failing to obtain the documents and witnesses requested by Plaintiff.

Plaintiff also alleges that Defendant Squillace violated Plaintiff's due process rights at the May 22-25, 2003 Ad Seg hearing by failing to call requested witnesses, failing to order the production of documents, and making a decision that was not supported by sufficient evidence. AC ¶¶ 34-36. A transcript of the hearing has been included as Dvorin Declaration, Ex. E. Defendant Maly was the only witness at the hearing. (5/25/03 Hearing Transcript at 10-14).

Defendant Squillace upheld Plaintiff's placement in Ad Seg, and Plaintiff appealed the decision. On August 25, 2003, Defendant Selsky reversed the administrative determination based on insufficiency of evidence and sent the matter back to the facility for a new hearing. Plaintiff argues that Defendant Selsky violated Plaintiff's due process rights by allowing a second hearing rather than simply reversing the determination and expunging the records. AC ¶ 38.

After Selsky's administrative reversal for insufficient evidence, another hearing was scheduled, and Defendant Chapperino was assigned as Plaintiff's employee assistant. Dvorin Declaration Ex. C at 16. Once again, Plaintiff requested a series of documents and witnesses, some of which were refused due to the "ongoing investigation." Id. at 19-22. Plaintiff's second hearing began on August 29, 2003 and ended on September 4, 2003. Id. at 7. Defendant Pico was the hearing officer, and a transcript of the hearing has been filed as Dvorin Declaration Ex. F.

At the second hearing, Plaintiff maintained that he did not attempt to escape on May 7, 2003 because he was in the visiting room with 17 corrections officers and 65 visitors when the "code blue" was announced in the jail. (8/29/03 Hearing Transcript at 13). Plaintiff told the hearing officer that although he did not receive the requested documents from his assistant, he had already seen the documents because his attorney and his private investigator had obtained these documents, so Plaintiff already knew what the facts of the alleged escape were. Id. at 12-13, 19. Plaintiff's focus was to convince Defendant Pico that Plaintiff did not "go to the door . . . intend to open the door [or] . . . try to run out the door." Id. at 20.

Defendant Lutz testified at Plaintiff's second hearing. Id. at 23-26. Defendant Lutz testified that he wrote the administrative segregation recommendation because he was told to do so by Defendant Maly, and that Defendant Lutz had not personally reviewed any of the paperwork in the case. Id. at 23, 25. Defendant Chiapperino also testified at the hearing and stated that he did not provide many of the requested documents because there was an investigation pending and the "information was not available." Id. at 26. At the hearing, Plaintiff produced a newspaper clipping that outlined a great deal of the facts of the investigation which Defendant Pico read into the record. Id. at 39. Defendant Pico stated at Plaintiff's hearing that Pico would obtain the UI (Unusual Incident) package from Sing Sing Correctional Facility and would review it, share the information that could be shared with Plaintiff, and maintain the confidentiality of the rest. Id. at 42.

Later during the hearing, Defendant Pico asked Plaintiff why he wished to call witnesses to prove that Plaintiff was in the visiting room on May 7, 2003, and Plaintiff stated that he believed that corrections officials were trying to accuse Plaintiff of attempting to escape from the visiting room. Id. at 43. Defendant Pico allowed Plaintiff to call another inmate to testify that he and Plaintiff were in the visiting room together on May 7, 2003 when the "code blue" was announced. Id. at 48-50. Defendant Pico eventually obtained the UI report and stated on the record that he reviewed the information contained in the report. Id. at 53. Defendant Pico also discussed parts of the report with Plaintiff. Id. at 54-55.

Defendant Seyfert also testified at Plaintiff's second hearing, however, Plaintiff did not hear that testimony, and the tape recording of that testimony has been maintained as confidential.*fn5

Plaintiff objected to Defendant Pico's refusal to allow Plaintiff to hear the "confidential" tape, arguing that nothing on the tape was confidential, and that "most of the stuff is already in the newspapers." Id. at 62. Plaintiff also stated that he had already spoken to Defendant Seyfert and that "he explained everything to me that's going on in the case." Id. Plaintiff stated that he only wished to hear the tape so that if Defendant Seyfert were stating something that was not true regarding the investigation, Plaintiff could controvert the statement with documents in Plaintiff's possession. Id. at 62-63.

Plaintiff requested that his attorney and his private investigator be called as witnesses, but Defendant Pico denied those requests because the individuals did not have any connection to the incident. Id. at 56-58, 62. After Defendant Pico denied Plaintiff his attorney and private investigator as witnesses, Plaintiff made a very lengthy statement regarding the incidents of May 7, 2003. Plaintiff cited federal case law to the hearing officer, arguing that Plaintiff should not be found "guilty" of the attempted escape. Id. at 64-65, 66.

Defendant Pico found, based upon the evidence, including the confidential tape, that Plaintiff should be kept in administrative segregation, but specifically told Plaintiff that he was not finding him "guilty" of committing any particular misbehavior in the visiting room on May 7, 2007. Id. at 85-86. Defendant Pico stated that Plaintiff was still under investigation for the alleged escape attempt from Sing Sing. Id. at 86. Defendant Selsky affirmed the continuation of administrative segregation. Dvorin Decl. Ex. D at 1.

Defendants have also submitted the periodic administrative review documents. Maly Decl. Ex. B. The initial reviews indicated that administrative segregation was being continued because Plaintiff was under investigation for an escape attempt at Sing Sing. Id. at 9-11.*fn6 The review dated March 5, 2004 states that the Plaintiff was "criminally charged" for an escape attempt at Sing Sing Correctional Facility. Id. at 8. All these review documents also state that Plaintiff was exhibiting a positive attitude and good behavior while in Ad Seg. Id. at 8-11.

The next review, dated May 3, 2004 stated that although Plaintiff was following staff directions in Ad Seg and showed an "overall positive attitude," he was also caught attempting to smuggle a personal communication concealed in legal work. Id. at 6,7. The review document stated that Plaintiff had a hearing regarding this conduct and received a thirty day Special Housing Unit ("SHU") sanction as a result of the guilty finding. Id. It was also stated, as had been stated in the previous reports, that his presence in general population could jeopardize the security of the facility. Id.

The periodic review report dated July 1, 2004 stated exactly the same reasons for maintaining Plaintiff in administrative segregation. Id. at 5. The December 25, 2004 review was identical to the previous report. Id. at 4. The February 22, 2005 periodic review document stated that Plaintiff had been "criminally charged" for the escape attempt, and that he was "currently standing trial" for those charges. Id. at 3. The recommendation was to continue Plaintiff in Ad Seg. Id. On April 22, 2005, the review document states that Plaintiff was found guilty after trial in Westchester County for attempted escape, first degree, among other charges. Id. at 2. Again, the recommendation was to continue Ad Seg. Id.

In addition to Plaintiff's placement in administrative segregation, a "mail watch" was requested by Defendant Maly and approved by Defendant Smith for all of Plaintiff's mail between May 16, 2003 until June 22, 2005, with a review every two months. All the mail watch orders have been submitted as an exhibit to the Defendants' cross-motion. Smith Decl. Ex. F. The mail watch request states that Plaintiff was under investigation by DOCS and by the New York State Police for attempting to escape from Sing Sing. Id. at 3.

Incoming mail was to be reviewed for any plans for criminal activity and information which, if communicated, would create a security threat. Id. Outgoing mail was going to be reviewed because there was reason to believe that DOCS rules or regulations had been violated. Id. Defendant DSS Maly was chosen to monitor the mail, and the mail watch form indicates that legal mail was included. Id. Finally, there is a "note" at the bottom of the page stating that as the mail is received, it should be "immediately" distributed to the inmate unless it contained contraband. Id.

Plaintiff also claims that the Defendants responsible for the misbehavior report and disciplinary hearing held against Plaintiff on April 7, 2004*fn7 violated his due process rights. On March 27, 2004, Defendant Stokes issued a misbehavior report against Plaintiff for having "authorized articles in an unauthorized area" and "smuggling." Kimler Decl. Ex. A (misbehavior report). Defendant Stokes stated that he was working in the SHU on March 27, 2004 and was helping to escort Plaintiff to the second floor infirmary for a visit. Id. While going through the legal mail that Plaintiff was taking to the visit, Defendant Stokes found three pages of a personal letter, hidden in a "law firm envelope." Id. The letter was confiscated, and a contraband receipt was issued. Id. Defendant Kimler was chosen by Plaintiff as his employee assistant. Dvorin Decl. Ex. D at 12, 15. Plaintiff was charged with attempting to smuggle a personal letter into the visiting area inside a legal envelope. The three page letter was an exhibit at the disciplinary hearing and has been submitted as part of the April 7, 2004 hearing packet in this case. Id. at 8-10, 22-24 (duplicate).

At the disciplinary hearing, Plaintiff complained that the hearing was not held within seven days of the incident, and was therefore, untimely. Dvorin Decl. Ex. G at 4. The hearing officer, Defendant Gardner, explained to Plaintiff that because he was not "confined" based on the misbehavior report,*fn8 prison officials had fourteen days to commence the hearing, and the hearing was timely. Id. Plaintiff's defense to the charge was that he gave the legal envelope in which the letter was found, to Defendant Stokes when Plaintiff was in his cell, but that Defendant Stokes did not look in the envelope until they got to the visiting room.*fn9 Thus, Plaintiff contends that Defendant Stokes was responsible for bringing the letter into an unauthorized area. Id. Plaintiff claimed that if Defendant Stokes had looked inside the legal envelope when they were still in Plaintiff's cell, he would never have been charged with this misbehavior. Id. Plaintiff later claimed that he did not even know that the letter to his mother was in the envelope, and that this was a copy of a letter that Plaintiff had already mailed to his mother, using the regular procedures. Id. at 8-9.

Defendant Stokes testified at Plaintiff's disciplinary hearing. Id. at 6-10. Defendant Stokes testified that when he found the letter, he initially told Plaintiff that he would just put the pages back in Plaintiff's cell, but "then I thought better of it and I said well, I'll let the Sergeant review it. Let her make the call." Id. at 10. Defendant Kimler was the sergeant involved, and she also testified at Plaintiff's disciplinary hearing. Id. at 11-13. Sergeant Kimler admitted that when she went over the incident with Plaintiff, he stated that he "forgot it was in there." Id. at 13. Defendant Gardner found Plaintiff guilty of the misbehavior and imposed a penalty of thirty days SHU confinement and loss of various privileges. Id. at 17. Plaintiff appealed the decision, and Defendant Selsky affirmed this disciplinary determination on July 15, 2004.

B. Cruel and Unusual Punishment

Plaintiff claims that between September 26, 2003 and October 10, 2004, Defendant Karamanos harassed Plaintiff by kicking Plaintiff's cell door every half hour while Plaintiff was trying to sleep. AC ¶ 55. Plaintiff claims that at unspecified times during this period, Defendant Karamanos also refused to give Plaintiff soap, writing paper, and tissue. Id. Plaintiff also claims that Defendant Karamanos spit in Plaintiff's food and threatened to kill Plaintiff. Id. Plaintiff alleges that Defendant Smith violated Plaintiff's right to be free of cruel and unusual punishment by failing to protect Plaintiff against Defendant Karamanos's conduct. AC ¶ 62.

Plaintiff claims that Defendant Smith further violated Plaintiff's Eighth Amendment rights by refusing to return Plaintiff's typewriter and reading lamp after learning of "excessive pains" in Plaintiff's hands due to the great deal of writing that Plaintiff had to do "because of his confinement" and after learning of Plaintiff's "eye pains." AC ¶¶ 63-64. Defendant Smith is also alleged to have forced Plaintiff to shave with a razor instead of an electric shaver; denied Plaintiff adequate laundry services and refused to provide Plaintiff with a "reasonable alternative" to the prison laundry. AC ¶¶ 65-66. Plaintiff blames Defendant Smith for causing Plaintiff's mild stroke on November 4, 2003. AC ¶ 53. Plaintiff claims that Defendant Smith caused a "stressful situation" when he prevented Plaintiff from proving his innocence at his "disciplinary hearing" and by directing Defendant Maly to conduct "sham" reviews of Plaintiff's placement in administrative confinement.

Plaintiff alleges that on March 2, 2004, Defendant Koemm violated Plaintiff's Eighth Amendment rights by forcing Plaintiff to come out of his cell at 7:00 a.m. and demanding that Plaintiff walk more than 100 feet in the cold while wearing only underwear in front of other inmates and female officers. AC ¶ 57. Plaintiff claims that Defendant Koemm also violated Plaintiff's Eighth Amendment rights on July 27, 2004 by refusing to feed Plaintiff for more than eleven hours and keeping Plaintiff in shackles for more than eleven hours. AC ¶ 58.

Plaintiff claims that prior to August 23, 2003, he asked Defendant Smith several times to transfer Plaintiff from the SHU area due to threats he had received from other inmates. AC ¶ 51. Plaintiff states that Defendant Smith refused to move Plaintiff, and because of Defendant Smith's failure to protect Plaintiff, he was assaulted by another inmate who threw urine and feces at Plaintiff on August 23, 2003. AC ¶ 51. Plaintiff also claims that Defendant Lutz subjected Plaintiff to cruel and unusual punishment after this incident because Defendant Lutz did not allow Plaintiff to shower for forty five minutes after the assault. AC ¶ 52.

C. Visitation and Access to Courts/Counsel

Plaintiff alleges that on May 25, 2003, Defendant Smith violated Plaintiff's right to "visitation of choice" by denying Plaintiff a visit with his clergyman, Minister James Willis.*fn10 AC ¶ 47. Plaintiff also alleges that Defendant Smith denied Plaintiff a visit with his attorney on June 18, 2003. AC ¶ 48. Plaintiff claims that Defendant Smith violated Plaintiff's attorney-client privilege by initiating the mail watch and opening all of Plaintiff's legal mail. AC ¶ 49. Plaintiff claims that Defendant Smith denied Plaintiff a legal telephone call on an unspecified date. AC ¶ 50. Plaintiff also alleges that Defendant Koemm violated Plaintiff's rights by "not allowing Plaintiff to speak with his attorney in private." AC ¶ 74.

D. Retaliation

Plaintiff claims that Defendant Kimler retaliated against Plaintiff for filing legal claims against her peers by taking Plaintiff's legal books and refusing to return them to him. AC ¶ 67. Defendant Kimler has filed an affidavit in which she states that on August 3, 2004, Corrections Officer Cusack*fn11 performed a routine cell search of Plaintiff's SHU cell. Kimler Aff. ¶ 5. As a result of that search, Officer Cusack confiscated, among other things, books and magazines that were "in excess of the number of items allotted SHU inmates." Id.

Defendant Kimler states that the excess books and magazines were placed in Plaintiff's personal property box according to DOCS Directives. Id. ¶ 5 & Ex. B. One of the books, entitled Prisoner Self-Help Litigation Manual, was returned to the facility Law Library, and a bible was returned to Plaintiff. Id. Officer Cusack did not issue a misbehavior report, but Plaintiff complained about the confiscation of materials, so Defendant Kimler investigated the matter. Id. Defendant Kimler states that she asked the Law Library Officer what books were signed out to Plaintiff. Id.

The Law Library Officer sent Defendant Kimler a memorandum listing two books signed out by Plaintiff, neither of which was the Self-Help Manual. Id.

Although Plaintiff claims that the Self-Help Manual was sent to him by his mother, Defendant Kimler states that the book was clearly stamped "SHU" in large letters on the front and on the binding of the book. Id. ¶ 6. Defendant Kimler asserts that the items were not confiscated because they posed a threat to security or because Plaintiff sued other officers in the facility, but rather because the items were in excess of the amount allowed in an SHU cell. Id. ¶¶ 6, 7.

E. Grievances

Plaintiff's amended complaint also names Thomas Eagen, Director of the Inmate Grievance Program. Plaintiff filed grievances regarding Defendant Smith's alleged refusal of the telephone call to Plaintiff's lawyer, and the denial of Minister Willis's visit. Plaintiff also filed a grievance regarding Defendant Karamanos's alleged behavior, although in Plaintiff's claims against Defendant Eagen, he does not mention Eagen's affirmance of the denial of the Karamanos grievance.

Defendant Eagen has submitted an affidavit in support of the Defendants' cross-motion for summary judgment. In the affidavit, Defendant Eagen states that although he is the Director of the Inmate Grievance Program (IGP), he has no vote in the Central Office Review Committee's (CORC) determination of specific grievances. Eagen Aff. ¶ 6. Defendant Eagen is responsible "solely for the administrative functions of the IGP and CORC." Id.

3. Due Process

Plaintiff in this case has five distinct due process claims. First, Plaintiff alleges that his placement in administrative segregation violated due process. Second, Plaintiff alleges that the periodic reviews conducted while he was in administrative segregation were "shams" and violated due process. Third, Plaintiff alleges that the Defendants involved in his disciplinary hearing for smuggling violated his due process rights in connection with that hearing. Fourth, Plaintiff alleges that Defendant Eagen violated due process when affirming the denial of Plaintiff's grievances regarding his legal call, legal visit, and his visit from Minister Willis. Finally, Plaintiff alleges that Defendant Daughtry violated Plaintiff's due process rights by falsely reporting to Defendant Smith that Plaintiff was under investigation for escape, and later by arresting Plaintiff without probable cause.

A. Administrative Segregation Placement

In order to begin a due process analysis, the court must determine whether Plaintiff had a protected liberty interest in remaining free from the confinement that he challenges and then determine whether the Defendants deprived Plaintiff of that liberty interest without due process. Giano v. Selsky, 238 F.3d 223, 225 (2d Cir. 2001); Bedoya v. Coughlin, 91 F.3d 349, 351 (2d Cir. 1996). In Sandin v. Conner, the Supreme Court held that although states may still create liberty interests protected by due process, "these interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force ..., nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 483-84 (1995).

The Second Circuit has implied that whether a deprivation is atypical and significant involves fact finding. See Frasier v. Coughlin, 81 F.3d 313, 317 (2d Cir. 1996)("[t]he extensive fact-finding of the district court permits us to measure Frasier's SHU claim by the standard of Sandin); Samuels v. Mockry, 77 F.3d 34, 38 (2d Cir. 1996)(assessment as to whether inmate had a protected liberty interest may require fact finding). The Court in Sandin determined that the inmate's discipline in segregated confinement ...


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