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Patrick Proctor v. Lucien J. Leclaire


April 25, 2013


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:


Proctor v. LeClaire

(Argued: January 9, 2013

Before: KEARSE, KATZMANN, and LOHIER, Circuit Judges.

See 2011 WL 2976911 (July 21, 2011).

Vacated and remanded.

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 due process violation with respect to the periodic review." The 24 defendants contended that Proctor's new claim "should not be entertained" by the court.

1 The magistrate judge to whom the motions had been referred for report and 2 recommendation recommended that the defendants' motion for summary judgment be granted and that 3 Proctor's cross-motion be denied. As to the due process claims arising out of the December 2003 4 administrative segregation hearing, the magistrate judge stated that the hearing had been conducted 5 in accordance with New York State regulations and in accordance with due process. See Report and 6 Recommendation of the Magistrate Judge Gustave J. DiBianco dated September 30, 2008 7 ("Magistrate's 2008 Report"), at 14-29.

8 The magistrate judge added that Proctor's claim for denial of due process with respect 9 to the periodic reviews was not properly before the court because there was no mention of such a 10 claim in the 2005 complaint. The magistrate judge noted that 11 [t]he question of periodic review is a due process claim that is separate from 12 the claim for the initial placement in administrative segregation.

13 Plaintiff's motion for summary judgment, filed in 2008, is the first time 14 in this case that plaintiff is complaining about his periodic reviews. There is 15 absolutely no mention of periodic reviews in his amended complaint that was 16 initially submitted as a motion to amend on September 8, 2005. Since plaintiff 17 was placed in administrative segregation in 2003, by September of 2005, there 18 would have been many of those periodic reviews to challenge if plaintiff 19 wished to do so. Defendants are correct in arguing that the constitutionality 20 of plaintiff's periodic reviews is not before the court. 21 Id. at 33-34 (emphases in original).

22 In a decision dated December 16, 2008, District Judge Glenn T. Suddaby, to whom 23 Proctor I was then assigned, accepted and adopted the magistrate judge's recommendation, see, e.g., 24 Proctor I, 2008 WL 5243925, at *1, *5, *6, *7, *9-*28, and dismissed the 2005 complaint. The court 25 found that no evidence had been proffered to show a denial of procedural due process, pointing out 26 that Proctor had been afforded, inter alia, 7 1 (1) substantial notice of the hearing; (2) the right to choose an assistant before 2 the hearing; (3) the ability to have two witnesses interviewed; (4) notice of his 3 rights during the hearing; (5) the ability to be present for the entire hearing; (6) 4 wide latitude to argue and object during the hearing; (7) the opportunity to 5 question Defendant Seyfert and Deputy Superintendent Carpenter at the 6 hearing; (8) the opportunity to challenge evidence against him; (9) a 7 deliberately and patiently conducted hearing; and (10) a written hearing 8 determination that was supported by at least some evidence.

9 Id. at *4 (internal quotation marks omitted). The district court ruled that there was also no basis for 10 Proctor's claims of the denial of substantive due process. It stated that, given the record of Proctor's 11 history of violent behavior, both in and out of prison, the decision to impose administrative 12 segregation could not be viewed as arbitrary in the constitutional sense. See id. at *6.

13 With respect to Proctor's belatedly-raised claim that he was denied due process in the 14 periodic reviews, the district court noted 15 [a]s an initial matter, . . . that Plaintiff appears to have asserted his procedural 16 due process claim regarding periodic reviews for the first time in his 17 Memorandum of Law dated February 7, 2008, nearly two and a half years after 18 he filed an [a]mended [c]omplaint . . . and nearly one and a half years after 19 discovery closed in the action . . .

20 Proctor I, 2008 WL 5243925, at *6 (emphases in original). The court concluded that 21 [a]s a result, it appears that Defendants have conducted no discovery regarding 22 the claim. For this reason alone, this claim is not properly before the Court, 23 no matter how much special solicitude Plaintiff is afforded. 24 Id. (emphasis added).

25 The court went on to say, however, that it would briefly address the merits of the 26 challenge to the periodic reviews "in the interest of thoroughness." Id. The court concluded that 27 Proctor had not been denied meaningful periodic reviews; that he had not been kept in SHU for new 28 reasons ("the Court can find no evidence in the record that Plaintiff continued to remain in 29 administrative segregation as a result of a new reason that arose after the date on which he was 8 1 originally placed in administrative segregation"); and that in the absence of any new reason for his 2 administrative confinement in SHU, Proctor had not been deprived of any right to an explanation of 3 the decisions to continue that confinement. Proctor I, 2008 WL 5243925, at *7. 4 Judgment was entered dismissing the 2005 complaint. Proctor timely appealed; this 5 Court dismissed the appeal as lacking any basis in fact or law.

6 C. The Present Action

7 In 2009, Proctor, again proceeding pro se and in forma pauperis, commenced the 8 present action against LeClaire; Proctor filed his amended Complaint in 2010. The 2010 Complaint 9 alleged principally that the periodic reviews of his SHU status--first occurring on February 23, 2004, 10 and conducted every 60 days thereafter--had been "perfunctory and meaningless," (2010 Complaint 11 ¶ 102), and were "performed merely as a formality and . . . a pretext . . . to indefinitely confine 12 [Proctor] to Ad Seg" (id. ¶ 47). Proctor contended that all references to all of the allegations 13 mentioned in the December 2003 Ad Seg Recommendation should have been expunged from his 14 record--one of which he stated he had been misled to believe was expunged--and that that allegedly 15 false information remained the basis for his continued administrative segregation (see, e.g., 2010 16 Complaint ¶¶ 37, 48, 53, 84); that new or changed reasons given by the review committee for 17 continuing his administrative segregation were false or misleading (see, e.g., id. ¶¶ 42-46, 71); and 18 that he was not provided advance notice of such proposed rationales and thus had been unable to 19 defend against them (see id.). He also alleged that the reviews were "discriminatory" in that he was 20 not allowed to participate in them but was allowed only to raise objections after the decisions had 21 been made. (See, e.g., id. ¶¶ 14, 46, 50.) The 2010 Complaint alleged that some letters Proctor had 9 1 submitted to the review committee were not in fact reviewed, denying him a right to be heard. (See, 2 e.g., id. ¶¶ 35, 62; see also id. ¶ 74 (alleging that Proctor's counselor informed Proctor that "he never 3 saw any letters [Proctor] wrote for consideration, [and had not] sat down with any security supervisor 4 and/or committee chairman to discuss [Proctor's] Ad Seg status").) Proctor also alleged that he had 5 been informed by multiple sources that he was being detained simply because his escape from 6 Shawangunk had angered DOCS staff. (See id. ¶¶ 91-95; id. ¶ 92 (alleging that Proctor "was told by 7 several . . . staff . . . that the word is he will remain in Ad Seg for the rest of his sentence" because of 8 his earlier escape and because he had "caus[ed] embarrassment for the Commissioner, the Department 9 and the Governor"); id. ¶ 94 (alleging that DOCS Assistant Commissioner told Proctor, "I don't know 10 if you will ever get out. I was in the office th[e] day [of your escape]. You pissed a lot of people off.

11 They think the Governor lost the election because of the escape that day.").) 12 LeClaire moved to dismiss the 2010 Complaint on grounds that (1) the Complaint 13 failed to allege his personal involvement in the alleged due process violations; (2) Proctor's claim was 14 barred by claim preclusion; and (3) the Complaint was untimely. Judge Sharpe, to whom Proctor II 15 was assigned, referred the motion to a magistrate judge for report and recommendation.

16 The magistrate judge concluded that Proctor had sufficiently alleged LeClaire's 17 participation in the claimed violations and that Proctor's claim was not time-barred. See Report and 18 Recommendation of the Magistrate Judge David E. Peebles dated February 17, 2011 ("Magistrate's 19 2011 Report"), at 14, 26. But he recommended that the 2010 Complaint be dismissed on grounds of 20 claim preclusion and issue preclusion. See id. at 23-24.

21 The magistrate judge stated, first, that Proctor could have raised his periodic-reviews 22 claim in Proctor I, stating that "[b]y the time of plaintiff's submission of his summary judgment brief 10 1 in [Proctor I] . . . twenty-five periodic reviews of administrative segregation . . . had already been 2 conducted." Magistrate's 2011 Report at 19. The magistrate judge also concluded that these periodic 3 reviews were in fact raised and were addressed by Judge Suddaby in Proctor I. See Magistrate's 2011 4 Report at 17, 23.

5 As to the periodic reviews that post-dated Proctor's summary judgment submission, 6 the magistrate judge, focusing on "'whether the same transaction or connected series of transactions 7 is at issue,'" id. at 19 (quoting Monahan v. New York City Department of Corrections, 214 F.3d 275, 8 289 (2d Cir.) (emphasis in Monahan), cert denied, 531 U.S. 1035 (2000)), recommended that Proctor's 9 2010 Complaint be dismissed on the ground of claim preclusion. He viewed all of Proctor's factual 10 allegations as "deriv[ing] ultimately from the same origin or motivation . . . that drove his claims in 11 [the Proctor I] complaint," Magistrate's 2011 Report at 21 (internal quotation marks omitted), and 12 viewed Proctor's current claim as alleging "the very same . . . unconstitutional conduct" that he had 13 challenged in the prior action, id. at 23.

14 The magistrate judge stated, however, that

15 [t]his is not to say . . . that a future action or series of future occurrences 16 involving plaintiff's administrative segregation review could not at some point 17 suffice to create a new, viable section 1983 action. . . . It may well be that 18 some time in the future the plaintiff can sufficiently allege changed 19 circumstances altering the factual predicate of his procedural due process 20 claim such that it would not be barred by the original judgment. . . . Claims 21 based on conduct or procedures which were not contemplated by, or a direct 22 result of, the earlier action would not necessarily be precluded.

23 Id. at 22 (internal quotation marks omitted). 24 The magistrate judge also opined that Proctor's 2010 Complaint should be dismissed 25 on the ground that it was "subject to issue preclusion." Id. at 24. He stated that "Judge Suddaby 26 considered and addressed the merits of [Proctor's] procedural due process claim stemming from the 11 1 contention that period[ic] reviews of his administrative segregation status have not been meaningful, 2 but instead are sham proceedings based upon false information." Id. 3 Proctor objected to the Magistrate's 2011 Report, arguing, inter alia, that the magistrate 4 judge erred in suggesting that Judge Suddaby, when deciding Proctor I, had addressed--or even seen-- 5 25 periodic reviews. Proctor also stated that he had not been aware of the sham nature of the earlier 6 reviews, or of LeClaire's "discriminatory" policy and practice, and that he therefore could not have 7 asserted such a claim when he filed his complaint in Proctor I. Proctor argued that his periodic- 8 reviews due process claim--as contrasted with his due process claims arising out of the December 9 2003 hearing--was not before the Proctor I court and thus that Judge Suddaby's analysis of the 10 periodic reviews was not necessary to the judgment in Proctor I.

11 The district court rejected Proctor's objections and adopted the Magistrate's 2011 12 Report in its entirety. See Proctor II, 2011 WL 2976911, at *3, *1. Stating that the doctrine of claim 13 preclusion forecloses a cause of action where "there was a final judgment on the merits in a previous 14 proceeding, involving the same parties or their privies, and arising out of the same transaction or 15 connected series of transactions," id. at *2 (internal quotation marks omitted), the court found that 16 principle applicable to Proctor's 2010 Complaint, stating as follows:

17 In the prior action, the issue of sixty-day reviews was not raised in 18 Proctor's complaint. . . . Rather, the issue was first raised and resolved at the 19 summary judgment stage.FN5

20 FN5. While this claim went unaddressed in Magistrate Judge 21 Gustave J. DiBianco's report and recommendation, District Judge 22 Glenn T. Suddaby concluded that although the issue was not properly 23 before the court, he would address the merits of the claim "in the 24 interest of thoroughness." (See Proctor v. Kelly, No. 9:05-CV-692, 25 Dec. 16, 2008 Order at 15, Dkt. No. 110.)

26 Proctor II, 2011 WL 2976911, at *3 & n.5 (emphases ours). The court continued:

1 Thus, with respect to the issue of claim preclusion, Judge Peebles 2 recommended dismissal because the claim should have been, and was, raised 3 in the previous action. . . . Proctor's due process claim concerning his periodic 4 reviews is the same claim he advanced in the prior action. . . . In fact, Proctor's 5 [2010 C]omplaint contends that LeClaire's discriminatory policy or practice 6 concerning his reviews began on or about February 23, 2004, (see Am. Compl. 7 ¶¶ at 13-14), and that since April 2008, each review has employed this 8 discriminatory policy, (see id. at ¶ 77). Proctor's first claim involved the initial 9 administrative segregation determination, and his second claim developed to 10 include the periodic reviews based on the same facts derive[d] ultimately from 11 the same origin or motivation. . . [T]his lawsuit would have formed a 12 convenient trial unit with the previous action since both involve substantially 13 the same occurrences regarding [Proctor's] periodic reviews of his 14 administrative confinement. . . . Both actions involve facts that occurred as a 15 "single transaction or series of related transactions." Waldman[ v. Vill. of 16 Kiryas Joel], 207 F.3d [105,] 112 [(2d Cir. 2000)] . . . . Accordingly, treating 17 the facts of both actions as a single transaction would conform to the parties' 18 expectations, . . . which supports Judge Peebles's reasoning that the doctrine 19 of claim preclusion bars Proctor's claim.

20 Proctor II, 2011 WL 2976911, at *3 (other internal quotation marks omitted) (emphases ours). 21 The district court also agreed with the magistrate judge's recommendation to apply 22 principles of issue preclusion. The court ruled that Proctor's due process claim had "already [been] 23 addressed on the merits" and was thus barred, id. at *4, stating that "[i]ssue preclusion bars [a] party 24 that has had a full and fair opportunity to litigate an issue of fact from relitigating the same issue once 25 it has been decided against that party," id. (internal quotation marks omitted). 26 Proctor timely appealed the Proctor II decision, and this Court appointed counsel to 27 represent him on the appeal.


2 On appeal, Proctor principally pursues his contentions that his claim of denial of due 3 process in the periodic reviews was not part of Proctor I, was not required to be part of Proctor I, and 4 no decision of such a claim was necessary to the judgment in Proctor I. We agree that the district 5 court's applications of claim preclusion and issue preclusion, which we review de novo, see, e.g., 6 Computer Associates International, Inc. v. Altai, Inc., 126 F.3d 365, 368 (2d Cir. 1997) ("Computer 7 Associates"), cert. denied 523 U.S. 1106 (1998), were in large part erroneous.

8 A. Claim Preclusion

9 Under the doctrine of res judicata, or claim preclusion, "'[a] final judgment on the 10 merits of an action precludes the parties or their privies from relitigating issues that were or could 11 have been raised in that action'" to support or to defend against the alleged cause of action. SEC v. 12 First Jersey Securities, Inc., 101 F.3d 1450, 1463 (2d Cir. 1996) ("First Jersey") (quoting Federated 13 Department Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981)), cert. denied, 522 U.S. 812 (1997).

14 [T]he doctrine of res judicata provides that when a final judgment has been 15 entered on the merits of a case, [i]t is a finality as to the claim or demand in 16 controversy, concluding parties and those in privity with them, not only as to 17 every matter which was offered and received to sustain or defeat the claim or 18 demand, but as to any other admissible matter which might have been offered 19 for that purpose.

20 First Jersey, 101 F.3d at 1463 (quoting Nevada v. United States, 463 U.S. 110, 129-30 (1983) (internal 21 quotation marks omitted) (emphases ours)). The fact that several operative facts may be common to 22 successive actions between the same parties does not mean that a judgment in the first will always 23 preclude litigation of the second. See, e.g., Interoceania Corp. v. Sound Pilots, Inc., 107 F.3d 86, 91 14 1 (2d Cir. 1997) ("Interoceania"). "'[A] prior judgment is res judicata only as to suits involving the 2 same cause of action.'" First Jersey, 101 F.3d at 1464 (quoting Lawlor v. National Screen Service 3 Corp., 349 U.S. 322, 329 (1955) (emphasis ours)); see, e.g., Nevada v. United States, 463 U.S. 4 at 128-30 (court must determine whether same "cause of action" is sued on); cf. First Jersey, 101 F.3d 5 at 1464 ("The claim that First Jersey defrauded customers in the sale, purchase, and repurchase of 6 certain securities in 1975-1979 is not the same as the claim that First Jersey defrauded customers in 7 the sale, purchase, and repurchase of other securities in 1982-1985.").

8 "For purposes of res judicata, [t]he scope of litigation is framed by the complaint at the 9 time it is filed." Computer Associates, 126 F.3d at 369-70 (internal quotation marks omitted). Acts 10 committed after the filing of the complaint are not within the scope of the plaintiff's claim. And 11 "[a]lthough a plaintiff may seek leave to file a supplemental pleading to assert a new claim based on 12 actionable conduct which the defendant engaged in after a lawsuit is commenced, see Fed. R. Civ. P. 13 15(c), he is not required to do so . . . ." Computer Associates, 126 F.3d at 370 (citing First Jersey, 101 14 F.3d at 1464). "If the second litigation involve[s] different transactions, and especially subsequent 15 transactions, there generally is no claim preclusion." First Jersey, 101 F.3d at 1464 (emphases added); 16 see, e.g., Lawlor, 349 U.S. at 328 (no res judicata bar to antitrust claim for anticompetitive conduct 17 occurring subsequent to first antitrust suit); Crowe v. Leeke, 550 F.2d 184, 187 (4th Cir. 1977) ("res 18 judicata has very little applicability to a fact situation involving a continuing series of acts, for 19 generally each act gives rise to a new cause of action").

20 In the present case, Proctor's current due process challenge to the periodic reviews was 21 not within the scope of his 2005 complaint. The due process claims asserted in the original and 22 amended complaints in Proctor I were that Proctor was denied due process in connection with the 15 1 December 2003 hearing. As recognized by the defendants and the district court in Proctor I, those 2 pleadings made no mention of any due process claim with respect to the periodic reviews. See, e.g., 3 Proctor I, 2008 WL 5243925, at *1 n.1 ("Plaintiff's claim regarding periodic reviews was raised for 4 the first time in his February 7, 2008 Memorandum of Law, more than two years after Plaintiff filed 5 his [a]mended [c]omplaint"); Magistrate's 2008 Report at 33-34 ("[t]here is absolutely no mention of 6 periodic reviews in [Proctor's] amended complaint . . . . Defendants are correct . . . that the 7 constitutionality of plaintiff's periodic reviews is not before the court" (emphasis in original)). Thus, 8 a challenge to the periodic reviews, though raised in Proctor's 2008 cross-motion for summary 9 judgment, was not within the scope of Proctor I.

10 By the time Proctor commenced Proctor I some of the mandated 60-day periodic 11 reviews had taken place. And to the extent that Proctor believed that those reviews were 12 constitutionally deficient, he could have joined such a claim with his claims that he was denied due 13 process in connection with the December 2003 hearing. But he was not required to do so because the 14 claims raised in Proctor I and the claim raised in this suit do not constitute the same cause of action.

15 The claims raised in Proctor I focused on the decision against Proctor in December 2003 by a hearing 16 officer and on the ensuing affirmance of that decision by another corrections official; the present 17 claim focuses on decisions adverse to Proctor made periodically after 2003 by committees consisting 18 of three persons. Further, the decision whether to continue a prisoner's administrative segregation 19 depends not only on the prisoner's history that led to his SHU confinement, but on his "subsequent 20 behavior and attitude," 7 NYCRR § 301.4(d)(1)(ii) (emphasis added), and on other circumstances as 21 they exist at the time of the review, see generally Helms, 459 U.S. at 477 n.9.

1 Thus, although the Proctor II court viewed the initial confinement and the subsequent 2 periodic reviews as "the same transaction," 2011 WL 2976911, at *2 (internal quotation marks 3 omitted), and believed that "treating the facts of both [the initial confinement and the continued 4 confinement] as a single transaction would conform to the parties' expectations," id. at *3 (internal 5 quotation marks omitted), we disagree. If the initial decision to administratively confine an inmate 6 and the subsequent decisions to continue his confinement were a single transaction for res judicata 7 purposes, a judgment ruling that there was no due process violation in the original administrative 8 confinement would, in effect, relieve subsequent reviewers of any due process constraints. The very 9 fact that there is a requirement, however, that after the initial decision imposing administrative 10 segregation "[p]rison officials must engage in some sort of periodic review of the confinement of such 11 inmates," Helms, 459 U.S. at 477 n.9 (emphasis added), means that the initial authorization for 12 confinement and the subsequent decisions to continue confinement--although plainly involving 13 considerations that overlap--are not, and could not reasonably be expected to be, the "same 14 transaction." Accordingly, we conclude that the district court erred in ruling that Proctor's present due 15 process claim with respect to the post-2003 periodic reviews is barred by the Proctor I judgment 16 rejecting his challenges to the December 2003 hearing.

17 Finally, we see no basis for any suggestion that the district court in Proctor I in effect 18 allowed Proctor to supplement his 2005 complaint with a due process challenge to the periodic 19 reviews. As set out in Part I.B. above, the district court noted that the periodic-reviews claim was 20 not mentioned until Proctor's 2008 cross-motion for summary judgment, "nearly one and a half years 21 after discovery closed in the action," Proctor I, 2008 WL 5243925, at *6 (emphasis in original). And 22 rather than reopening discovery, as would have been necessary had the court allowed Proctor to file 17 1 a supplemental complaint to assert that previously unmentioned claim, the court stated that defendants 2 had had no opportunity for discovery with respect to the periodic reviews and that "[f]or this reason 3 alone, this claim is not properly before the Court," id.

4 Although the Proctor I court went on to address the periodic reviews "in the interest 5 of thoroughness," id., it thereby went beyond the scope of the 2005 complaint; and its rejection of 6 Proctor's challenge to the December 2003 hearing did not in any way depend on the adequacy or 7 appropriateness of the periodic reviews that commenced in 2004. We conclude that the Proctor II 8 court erred in ruling that Proctor's present action is barred by principles of claim preclusion.

9 B. Issue Preclusion

10 For similar reasons, we conclude that, except as to certain issues, the Proctor II court's 11 application of issue preclusion was inappropriate. Issue preclusion, or collateral estoppel, which 12 applies not to claims or to causes of action as a whole but rather to issues, bars litigation of an issue 13 when

14 (1) the identical issue was raised in a previous proceeding; (2) the issue was 15 actually litigated and decided in the previous proceeding; (3) the party had a 16 full and fair opportunity to litigate the issue; and (4) the resolution of the issue 17 was necessary to support a valid and final judgment on the merits. 18 Ball v. A.O. Smith Corp., 451 F.3d 66, 69 (2d Cir. 2006) (internal quotation marks omitted); see, e.g., 19 McKithen v. Brown, 481 F.3d 89, 105 (2d Cir. 2007) ("McKithen"), cert. denied, 552 U.S. 1179 20 (2008); Interoceania, 107 F.3d at 91. For issue preclusion to apply, all of these conditions must be 21 met, although the allocation of the burden of proof is divided. 22 The burden of showing that the issues are identical and were necessarily 23 decided in the prior action rests with the party seeking to apply issue 24 preclusion . . . . In contrast, the burden of showing that the prior action did not 18 1 afford a full and fair opportunity to litigate the issues rests with . . . the party 2 opposing the application of issue preclusion.

3 Kulak v. City of New York, 88 F.3d 63, 72 (2d Cir. 1996). If all four of the above conditions are met, 4 issue preclusion is applicable even if the two suits are not based on the same cause of action. See, 5 e.g., Lawlor, 349 U.S. at 326; Balderman v. United States Veterans Administration, 870 F.2d 57, 62 6 (2d Cir. 1989).

7 If a party is not shown to have had a full and fair opportunity to litigate the issue, he 8 is not precluded from litigating it in a subsequent case. See, e.g., Allen v. McCurry, 449 U.S. 90, 101 9 (1980). Similarly, issue preclusion is inappropriate if "the issue in question" was not "actually and 10 necessarily decided in a prior proceeding." McKithen, 481 F.3d at 105 (internal quotation marks 11 omitted) (emphasis added); see, e.g., Interoceania 107 F.3d at 92 (defense not barred by collateral 12 estoppel where it was "not 'actually litigated and decided' in the previous proceeding and certainly was 13 not 'necessary to support a valid and final judgment on the merits'" (emphasis ours)). The district 14 court in Proctor II, in describing the requirements for issue preclusion, omitted the condition that the 15 decision in the first case must have been necessary to support the final judgment, see 2011 WL 16 2976911, at *4.

17 In the present action, Proctor contends principally (1) that the periodic reviews were 18 a "sham," (2) that information he provided to the review committees was not considered, (3) that the 19 reasons given by the review committees for continuing his administrative segregation were new, were 20 false or misleading, and were based on false information, and (4) that the review committees' 21 decisions were improperly based on evidence that should have been expunged from his record. Only 22 the last of these contentions is--in part--subject to issue preclusion.

1 The amended complaint in Proctor I clearly involved Proctor's contention that certain 2 evidence should have been expunged from his record; Proctor argued in Proctor I that where incidents 3 were reflected only in UI reports and not in misbehavior reports, those incidents did not occur. 4 Proctor's contention that it was improper for the hearing officer to rely on incidents that were 5 described in UI reports but not reflected in misbehavior reports was squarely rejected in Proctor I:

6 "To the extent that UI reports were considered where misbehavior reports were not issued, the court 7 does not find any error in their use." 2008 WL 5243925, at *21; see id. at *5. Thus, this legal issue-- 8 as to which Proctor has not shown any lack of opportunity to litigate--was actually decided and was 9 necessary to the ultimate judgment that the December 2003 hearing did not violate Proctor's due 10 process rights. This ruling also rejected Proctor's contention that due process required that all of the 11 records that were used in the December 2003 hearing be expunged from the record. Thus, Proctor 12 is barred from relitigating both the issue of whether the use of incidents described in UI reports that 13 were not the subject of misbehavior reports violates due process and--with one exception discussed 14 in Part II.B.2 below--the issue of whether due process requires that the UI reports that were 15 considered in his December 2003 hearing be expunged from his record.

16 1. "[U]nclear" Contentions and Rulings

17 Despite finding in general that the hearing officer did not err in relying on UI reports 18 that were not followed by misbehavior reports, the court in Proctor I did not, in connection with that 19 ruling, specifically address most of Proctor's contentions that the hearing officer had relied on false 20 or expunged information. Rather, the Proctor I court found that "[t]o the extent that [Proctor] claims 21 that [the December 2003 hearing officer] relied upon 'false and expunged' information, it is unclear 20 1 to what [Proctor] is referring," 2008 WL 5243925, at *21 (emphasis added). It is thus also unclear 2 to what specific false-information issues the Proctor I court was referring in finding no error. 3 While the lack of clarity as to Proctor's specific contentions would not prevent the 4 application of claim preclusion if that doctrine were otherwise applicable, it prevents the application 5 of issue preclusion because, inter alia, it is not clear that the false-or-expunged evidence issues in the 6 two actions are identical, and because we cannot conclude that in Proctor I the contentions that 7 Proctor's initial administrative confinement was based on false or expunged information were actually 8 resolved.

9 2. The Issue of the Nail Clipper Incident

10 The Proctor I court, in considering Proctor's contention that expunged matter should 11 not have been considered in the December 2003 hearing, did expressly address the UI-described 12 conduct that was also the subject of a misbehavior report, i.e., Proctor's alleged possession of a 13 sharpened nail clipper. The court noted that "the UI from this incident was considered in th[e 2003] 14 administrative segregation proceeding" after Proctor had "had the charges reversed and expunged" 15 in the mid 1990s. 2008 WL 5243925, at *21. But the court does not appear to have actually decided 16 that it was not error for the hearing officer to consider 17 that incident. The Proctor I court stated that "[t]o the extent that [the hearing officer] considered the 18 one incident involving the nail clipper, the court still finds that no due process violation occurred. . . 19 If it was error, the error was certainly not 'prejudicial'" to Proctor. Id. at *22 (footnote omitted) 20 (emphasis added). The court noted that it "ma[de] no . . . finding in this case" that consideration of 21 the nail clipper incident was a constitutional error. Id. at *22 n.11. It stated that "[t]here were so 21 1 many other incidents upon which [the hearing officer] could [have] base[d] his decision" that, "[e]ven 2 if the court were to assume that [the hearing officer] erred in considering the UI, and even if that error 3 could rise to the level of a constitutional error, the court would find the error harmless." Id. at *22 4 (footnote omitted) (emphasis added). Any finding that an error was harmless, however, must be based 5 on a consideration of the context in which the error was committed. A finding that an error was 6 harmless in the context of an initial hearing is not determinative of whether the same error would be 7 harmless in connection with subsequent reviews which are to consider evidence as to subsequent 8 behavior and contemporaneous circumstances.

9 In sum, to the extent that Proctor contends that any consideration of the expunged 10 allegation of his possession of a sharpened nail clipper violates due process, we do not see that that 11 issue was resolved in Proctor I. Proctor is not precluded from pursuing that issue in the context of 12 his due process challenge to the conduct of the periodic reviews.

13 3. The Issue of New Reasons Given by the Review Committees 14 Proctor also contends that decisions to continue his confinement in administrative 15 segregation were based on new, and false, reasons that differed from those found to warrant his 16 original confinement. The court in Proctor I found that no new reasons had been given. See 2008 WL 17 5243925, at *7. However, as discussed above, nothing the Proctor I court decided as to the post-2003 18 periodic reviews, in the interest of thoroughness, was necessary to the judgment in Proctor I that the 19 December 2003 hearing did not violate due process. Thus, Proctor's contention that in fact new and 20 false rationales were given for his continued confinement is not barred by issue preclusion.

1 4. Opportunity To Litigate with Respect to the Periodic Reviews 2 Finally, the record in Proctor I in no way indicates that Proctor had a full and fair 3 opportunity to litigate any allegation that was directed solely at the conduct of the periodic reviews. 4 As discussed above, in Proctor I the defendants argued that the periodic reviews were not in the case; 5 and the district court agreed that a challenge to the periodic reviews was not properly before the court.

6 The court indicated that there had been no prior mention of the periodic reviews and that they had not 7 been the subject of discovery. As the conduct of those reviews--which began in 2004--was not 8 relevant to Proctor's challenge to the constitutionality of the December 2003 hearing, the Proctor I 9 court did not reopen discovery for development of the issues specific to those reviews. Issues that 10 relate to the periodic reviews and that had no bearing on the constitutionality of the December 2003 11 hearing are thus not barred by issue preclusion.

12 We note that the Proctor II court expressed concern that if claim preclusion or issue 13 preclusion did not prevent Proctor from challenging the periodic reviews, which occur every 60 days, 14 he could bring a new action after every adverse decision, see 2011 WL 2976911, at *3. In theory, 15 such repetitive litigation would be possible. In practice, however, few rational persons will use their 16 own financial resources to repeatedly pursue claims that have been found frivolous; and federal law 17 places limits on the number of suits a prisoner may bring in forma pauperis. See 28 U.S.C. § 1915(g) 18 ("In no event shall a prisoner bring a civil action or appeal a judgment [in forma pauperis] if the 19 prisoner has, on 3 or more prior occasions, while incarcerated . . . brought an action or appeal in a 20 court of the United States that was dismissed on the grounds that it is frivolous . . . or fails to state a 21 claim upon which relief may be granted . . . .").


2 We have considered all of the arguments of both sides in support of their respective 3 positions with respect to claim preclusion and issue preclusion, and, except as indicated above, have 4 found them to be without merit. The judgment of the district court is vacated, and the matter is 5 remanded for further proceedings consistent with this opinion. We express no view as to the merits 6 of Proctor's present cause of action.


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