The opinion of the court was delivered by: David G. Larimer United States District Judge
Plaintiff, Aror Ark O'Diah, an inmate in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), filed this pro se civil rights action under 42 U.S.C. § 1983. On August 24, 2012, the Court issued a Decision and Order, 887 F.Supp.2d 497, dismissing the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, and denying plaintiff's motions for summary judgment and for leave to amend the complaint.
Plaintiff has moved "to modify or vacate, set aside, [and] declare null and void" the Court's August 24 Decision and Order. Dkt. #22. Treating plaintiff's motion as a motion to alter or amend a judgment under Fed. R. Civ. P. 59, the Court directed defendants to respond to plaintiff's assertion that the Court should have aggregated his several periods of confinement in the Special Housing Unit ("SHU") for purposes of determining whether plaintiff had adequately alleged a protected liberty interest with respect to his due process claim. Dkt. #23.
Defendants have filed a response (Dkt. #25), and plaintiff has filed an additional memorandum in support of his motion. Dkt. #26. Having considered both sides' submissions, the Court denies plaintiff's Rule 59 motion.
"It is well-settled that Rule 59 is not a vehicle for ... presenting the case under new theories ... or otherwise taking a second bite at the apple ... ." Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012) (internal quote omitted). "[R]econsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked." Id.
Again, the issue here is whether, under controlling Second Circuit precedent, the Court should have aggregated plaintiff's SHU sentences to determine whether he alleged the existence of a protected liberty interest for purposes of a due process claim. An inmate asserting a procedural due process claim arising from his placement in segregated confinement must establish "a protected liberty interest in not being confined" and that his "deprivation of that liberty interest occurred without due process of law." Sealy v. Giltner, 116 F.3d 47, 51 (2d Cir. 1997). In Sandin v. Connor, the Supreme Court established that a prisoner's restricted confinement within a prison does not give rise to a liberty interest warranting procedural due process protection unless the conditions and duration of the prisoner's confinement, "impose[ ] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." 515 U.S. 472, 484 (1995).
In determining whether a prisoner's SHU confinement implicates a protected liberty interest, the court must consider both the conditions and duration of that confinement. Although there is no mathematical test for determining how long a prisoner's period of SHU confinement must be before his due process rights are implicated, Palmer v. Richards, 364 F.3d 60, 64 (2d Cir. 2004), the Second Circuit has held that a 101-day confinement does not, in itself, meet the Sandin standard of atypicality, absent unusually harsh conditions. Ortiz v. McBride, 380 F.3d 649, 654 (2d Cir. 2004), cert. denied, 543 U.S. 1187 (2005); Palmer, 364 F.3d at 64-65. At the other extreme, confinements of 305 days or longer, even under otherwise ordinary conditions, may satisfy the Sandin standard of atypical and significant hardship. See Colon v. Howard, 215 F.3d 227, 231 (2d Cir. 2000).
While the Second Circuit has cautioned that "there is no bright-line rule regarding the length or type of sanction" that meets the Sandin standard of atypicality, Jenkins v. Haubert, 179 F.3d 19, 28 (2d Cir. 1999), the court has indicated that there is an intermediate range of "relatively long" sentences that require "specific articulation of fact findings before the district court [can] properly term the confinement atypical or insignificant." Sims v. Artuz, 230 F.3d 14, 22 (2d Cir. 2000) (segregative sentences of 125-288 days fall into the "relatively long" category). See also Palmer, 364 F.3d at 64-65 (confinements of intermediate length require inquiry into the actual conditions of confinement to determine whether plaintiff has established a protected liberty interest).
At issue in the case at bar is whether plaintiff's separate SHU sentences can or should be aggregated for purposes of this analysis. There is some authority that under certain circumstances, it may be appropriate to aggregate separate but consecutive periods of confinement if they constitute a "sustained period of confinement," Giano v. Selsky, 238 F.3d 223, 226 (2d Cir. 2001).
Plaintiff alleges that from about May 5, 2010 through early January 2011, he was confined to SHU for some 209 days. Dkt. #22 at 3. It appears, however, that his longest period of continuous SHU confinement was 111 days, from September 20, 2010 to January 9, 2011. See Dkt. #12 at 27. Plaintiff did serve additional 30-day sentences in May, June and August 2010, but they were discrete sentences that alternated with periods in which he was in the general population. Thus, they did not form a "sustained period of confinement."
The Second Circuit has indicated that when an inmate has been confined in SHU for some time, an official who imposes an additional, consecutive SHU sentence may be responsible, for § 1983 purposes, for the inmate's entire continuous period of confinement. See Sealey v. Giltner, 197 F.3d at 587 (aggregating an inmate's SHU sentences which ran without interruption, and holding that official who imposed second, 83-day sentence bore responsibility for 101-day aggregate of those 83 days of confinement and the 18 days that preceded it). See also Reynoso v. Selsky, 292 Fed.Appx. 120, 122 (2d Cir. 2008) ("Overlapping disciplinary penalties may, under some circumstances, have to be aggregated for purposes of determining whether a liberty interest was violated") (emphasis added); Giano, 238 F.3d at 226 (aggregating sentences where plaintiff's segregation at one facility was "simply a continuation of his segregation at" the facility from which he had been transferred, and a "review of the record indicate[d] that the two periods of confinement were based on the same administrative rationale").
Thus, the only "sustained period of confinement" that the Court can consider here is plaintiff's 111 days of continuous confinement from September 11, 2010 to January 9, 2011. That puts plaintiff near the lower end of the intermediate range, which requires examination of the conditions of confinement to determine whether ...