Appeal from a judgment of the United States District Court for the Northern District of New York dismissing, on grounds of res judicata and collateral estoppel, plaintiff's action under 42 U.S.C. § 1983 alleging deprivation of due process in the periodic reviews conducted with respect to his administrative confinement in a prison special housing unit.
The opinion of the court was delivered by: Kearse, Circuit Judge:
Before: KEARSE, KATZMANN, and LOHIER, Circuit Judges.
See 2011 WL 2976911 (July 21, 2011).
9 Plaintiff Patrick Proctor, a New York State prisoner who has been administratively 10 confined since 2003 in a Special Housing Unit (or "SHU") at the Great Meadow Correctional Facility 11 ("Great Meadow") or at the Clinton Correctional Facility, subject to reviews every 60 days, appeals 12 from a judgment of the United States District Court for the Northern District of New York, Gary L. 13 Sharpe, then-Judge, now Chief Judge, dismissing Proctor's amended complaint ("Complaint" or "2010 14 Complaint") brought under 42 U.S.C. § 1983 alleging that his due process rights have been violated 15 because the decisions to continue his confinement in SHU have been based on evidence that should 16 have been expunged from his record, the periodic reviews have been perfunctory and meaningless, 17 and the reasons given for his continued confinement have been false or misleading. The district court 18 granted the motion of defendant Lucien J. LeClaire, Jr., Deputy Commissioner of the New York State 19 Department of Correctional Services ("DOCS"), to dismiss the 2010 Complaint on the grounds that, 20 because Proctor had previously lost a similar suit, see Proctor v. Kelly, No. 05-cv-0692, 2008 WL 21 5243925 (N.D.N.Y. Dec. 16, 2008) ("Proctor I"), the present action was barred by principles of res 22 judicata and collateral estoppel, see Proctor v. LeClaire, No. 09-cv-1114, 2011 WL 2976911 23 (N.D.N.Y. July 21, 2011) ("Proctor II"). Challenging the district court's decision in the present action, 24 Proctor contends principally that neither claim preclusion nor issue preclusion is applicable because 2 1 his 2010 Complaint includes material allegations of new facts, asserting a cause of action that was 2 not previously litigated or decided. To an extent, we agree, and we therefore vacate the judgment and 3 remand for further proceedings.
5 Since 1989, Proctor has been serving a sentence of 32-1/2 years to life imprisonment 6 for convictions of second-degree murder and attempted escape. He had served prison terms in New 7 York twice before. In November 1994, Proctor escaped from Shawangunk Correctional Facility 8 ("Shawangunk"), was recaptured, and was sentenced to serve nine years and one month in SHU at 9 Great Meadow as disciplinary confinement for, inter alia, escape, weapons possession, assault, and 10 fighting.
11 A. Special Housing Units
12 A correctional facility SHU is a designated area that is designed "to maximize facility 13 safety and security," by separating particular inmates from the general prison population. 7 N.Y. 14 Comp. Codes R. & Regs. ("NYCRR") § 300.1(b); see also id. § 300.2. Inmates may be assigned to 15 SHU either for disciplinary reasons, see id. § 301.2, or for administrative reasons, see id. § 301.4. 16 Administrative confinement in SHU may be ordered where "the inmates' presence in general 17 population would pose a threat to the safety and security of the facility." Id. § 301.4(b). SHU inmates 18 are subject to particularly strict living conditions. See id. §§ 304.1-.14 (limited services); id. 19 §§ 305.1-.6 (controls and restrictions); see generally Palmer v. Richards, 364 F.3d 60, 65 & n.3 (2d 20 Cir. 2004).
1 A prisoner who has been confined in SHU for administrative reasons ("administrative 2 segregation" or "Ad Seg") has a due process right to have "[p]rison officials . . . engage in some sort 3 of periodic review of [his] confinement," Hewitt v. Helms, 459 U.S. 460, 477 n.9 (1983) ("Helms"); 4 see id. ("administrative segregation may not be used as a pretext for indefinite confinement of an 5 inmate"). New York law requires that these reviews be conducted "every 60 days in accordance with 6 the following procedure":
7 (1) A three-member committee consisting of a representative of the 8 facility executive staff, a security supervisor, and a member of the guidance 9 and counseling staff shall examine the inmate's institutional record and prepare 10 and submit to the superintendent or designee a report setting forth the 11 following:
12 (i) reasons why the inmate was initially determined to be 13 appropriate for administrative segregation;
14 (ii) information on the inmate's subsequent behavior and 15 attitude; and
16 (iii) any other factors that they believe may favor retaining the 17 inmate in or releasing the inmate from administrative segregation. 18 7 NYCRR § 301.4(d)(1). Such reviews must not deny the prisoner basic due process protections. See 19 generally Helms, 459 U.S. at 477 & n.9.
20 B. Proctor's 2005 Action
21 In December 2003, after Proctor had served his nine-years-and-one-month sentence 22 of disciplinary confinement in SHU, he was served with an Administrative Segregation 23 Recommendation (the "Ad Seg Recommendation") recommending that, at the end of his disciplinary 24 sentence, he remain assigned to SHU rather than being released into the general prison population. 25 The recommendation cited, inter alia, 14 specific instances of Proctor's alleged misbehavior (plus 4 1 general allegations of misbehavior), and it asserted that Proctor was an extreme risk to the safety and 2 security of facility staff and inmates with whom he could come into contact.
3 As described in Proctor I, part of the Ad Seg Recommendation cited Proctor's conduct 4 before he was confined in SHU, including his 1994 escape from Shawangunk, other escapes or 5 attempted escapes dating back to at least 1984, and his 1990 stabbing of another inmate. See, e.g., 6 Proctor I, 2008 WL 5243925, at *14. Proctor's alleged misconduct while in SHU--as recorded in 7 Unusual Incident ("UI") reports or staff memoranda, most of which did not result in misbehavior 8 reports--included his possession of a sharpened nail clipper (a charge that did become the subject of 9 a misbehavior report, but which was later reversed and eventually expunged); slipping out of his 10 handcuffs; starting multiple fires; telephoning a citizen whom he urged to firebomb a certain home; 11 stabbing another inmate housed in SHU; and concealing a razor in his rectum (as evidenced by 12 x-rays). See id. at *14-*16, *21.
13 A hearing, attended by Proctor, was held in December 2003 to evaluate the bases for 14 the Ad Seg Recommendation. See generally 7 NYCRR § 301.4(a) (hearing requirement); id. 15 §§ 254.1-.6 (hearing procedures); id. § 251-3.1 (formal charge requirements). The hearing officer 16 concluded that Proctor did "pose a threat to the safety and security of the facility," id. § 301.4(b), and 17 ordered Proctor's placement in administrative segregation. 18 In 2005, Proctor, proceeding pro se and in forma pauperis, commenced the action that 19 was eventually dismissed in Proctor I. Seven of the 10 causes of action asserted in his amended 20 complaint (or "2005 complaint") alleged that various DOCS employees, including LeClaire, had 21 violated his due process rights in connection with the December 2003 hearing that authorized his 22 administrative confinement. Proctor alleged principally that his administrative segregation hearing 5 1 was based on false allegations of misconduct that had been dismissed or expunged and thus should 2 not have been considered; that he was denied the right to present witnesses in his defense; that the 3 hearing officer was not impartial; and that portions of the hearing transcript had been destroyed. 4 (Proctor also asserted three Eighth Amendment claims that are not relevant to his present case.)
5 Proctor sought monetary and injunctive relief, including the expungement of all records that had been 6 used in the December 2003 hearing.
7 Following discovery, the defendants moved for summary judgment. With respect to 8 the due process claims, they contended, inter alia, that several of the defendants had not been 9 personally involved in Proctor's administrative segregation hearing, and that Proctor had received all 10 of the process to which he was entitled. Proctor cross-moved for summary judgment in his favor, 11 reiterating the allegations in the 2005 complaint, and adding in his memorandum of law 12 that Defendants . . . continue to maintain me in Ad Seg (based upon sham, 13 perfunctory '60 day-Reviews') and they are using the 'cloak of Ad Seg' as a 14 pretext to indefinitely confine me and punish me based upon false information 15 . . . [and] continue to [v]iolate due process [by denying me] Constitutionally 16 mandated meaningful reviews.
17 Proctor's memorandum added that LeClaire had been repeatedly notified of the allegedly false 18 information that was being used as grounds for Proctor's administrative segregation but had simply 19 rubber-stamped the periodic reports recommending Proctor's continued confinement in SHU. 20 In reply to Proctor's cross-motion, the defendants submitted a memorandum of law 21 arguing that "any alleged due process claim regarding periodic review is distinct from due process 22 claims associated with the initial placement in ad seg," and that "[t]he [2005 c]omplaint is devoid of 23 any allegations claiming any ...