Argued: September 21, 2016 [*]
from an order of the United States District Court for the
Northern District of New York (Sharpe, J.), granting
summary judgment for Defendants-Appellees. Plaintiff-
Appellant Patrick Proctor, an inmate who has been held in
solitary confinement for over two decades and is currently
under Administrative Segregation, filed this 42 U.S.C. §
1983 claim for deprivations of procedural and substantive due
process. We conclude that triable issues of fact remain as to
whether Proctor was denied the meaningful periodic reviews of
his Administrative Segregation that procedural due process
requires. We also conclude that the District Court erred in
granting summary judgment sua sponte without
adequate notice on Proctor's substantive due process
claim. VACATED and
Harvey Schatmeier (Timothy Gilman, on the brief), Kirkland
& Ellis LLP, New York, NY, for Plaintiff-Appellant.
D. Ginsberg, Assistant Solicitor General (Barbara D.
Underwood, Solicitor General, Andrea Oser, Deputy Solicitor
General, on the brief), for Eric T. Schneiderman, Attorney
General of the State of New York, Albany, NY, for
Before: Katzmann, Chief Judge, Wesley and Hall, Circuit
Wesley, Circuit Judge:
Patrick Proctor is an inmate in the custody of the New York
State Department of Corrections and Community Supervision
("DOCCS"), serving a sentence of
thirty-two-and-one-half years to life for second-degree
murder, robbery, and attempted escape. He is confined in the
Special Housing Unit (the "SHU"), or, as it is
better known, solitary confinement, where he has spent the
last twenty-two years. Proctor spent his first nine years in
the SHU under Disciplinary Segregation and the last thirteen
years and counting under Administrative Segregation.
Defendants-Appellees are current and former DOCCS
administrators: Lucien J. LeClaire, Jr., a former Deputy
Commissioner of DOCCS; Brian Fischer, a former Commissioner
of DOCCS; Anthony J. Annucci, the current Acting Commissioner
of DOCCS; and Joseph Bellnier, the current Deputy
Commissioner of DOCCS (collectively, "Defendants").
brings this action under 42 U.S.C. § 1983, alleging that
his continuous confinement in the SHU under Administrative
Segregation violates his Fourteenth Amendment rights to
procedural and substantive due process of law. The District
Court (Sharpe, J.) granted Defendants' motion
for summary judgment on Proctor's procedural due process
claim, holding that no reasonable juror could conclude that
Proctor was denied meaningful periodic reviews of his
Administrative Segregation commitment. The District Court
also awarded summary judgment to Defendants sua
sponte on Proctor's substantive due process claim.
conclude that the record presents triable issues of fact
regarding Proctor's procedural due process claim and that
the District Court violated Federal Rule of Civil Procedure
56(f) in awarding summary judgment sua sponte on
Proctor's substantive due process claim. The judgment of
the District Court is VACATED and the case is REMANDED for
DOCCS system, there are two relevant reasons for prison
administrators to send an inmate to the SHU- Disciplinary
Segregation and Administrative Segregation ("Ad
Seg"). Disciplinary Segregation, as its name suggests,
is designed to discipline an inmate found guilty of a
"Tier III" violation, the most serious of three
infraction levels in the DOCCS system. N.Y. Comp. Codes R.
& Regs. tit. 7, §§ 270.2, 270.3(a)(3), 301.2. A
Disciplinary Segregation term lasts "for a designated
period of time as specified by the hearing officer."
Id. § 301.2(a). Once that time elapses, the
statute does not empower DOCCS to punish the inmate doubly
for the same infraction by imposing further Disciplinary
Segregation. See id.
serves a different purpose. As relevant here, Ad Seg removes
an inmate from the general population when he "pose[s] a
threat to the safety and security of the [prison]
facility." Id. § 301.4(b). Given the
importance of that purpose, Ad Seg is flexible and accords
DOCCS officials substantial discretion in deciding whether to
impose an Ad Seg term. Ad Seg terms are open-ended and do not
require that DOCCS predetermine when it will release an
inmate-"[a]t any time when deemed appropriate [by
DOCCS], an inmate may be evaluated and recommended for return
to general population." Id. § 301.4(e)
is, however, a constitutional ceiling on that flexibility: To
ensure that a state prison facility does not use Ad Seg as a
pretext to commit an inmate to the SHU indefinitely, the Due
Process Clause of the Fourteenth Amendment mandates that
prison officials periodically review whether an inmate
continues to pose a threat to the facility. Hewitt v.
Helms, 459 U.S. 460, 477 n.9 (1983), abrogated in
part on other grounds by Sandin v. Conner, 515 U.S. 472
(1995). New York effectuates that mandate by providing an
inmate with an initial hearing within fourteen days of his
confinement in Ad Seg, see N.Y. Comp. Codes R. &
Regs. tit. 7, §§ 254.6, 301.4(a), and with reviews
conducted pursuant to section 301.4(d) of the DOCCS
regulatory code ("section 301.4(d) reviews") every
sixty days until he is returned to the general population,
see id. § 301.4(d).
301.4(d) review, as it manifests itself in this case, is a
three-step process. First, a committee commonly referred to as
the "Facility Committee, " consisting of "a
representative of the facility executive staff, a security
supervisor, and a member of the guidance and counseling
staff, " convenes to review the inmate's
institutional record. Id. § 301.4(d)(1). The
Facility Committee prepares and submits to the superintendent
of the prison a report outlining "(i) reasons why the
inmate was initially determined to be appropriate for [Ad
Seg]; (ii) information on the inmate's subsequent
behavior and attitude; and (iii) any other factors that [the
committee] believe[s] may favor retaining the inmate in or
releasing the inmate from [Ad Seg]" and recommending
whether to continue the inmate's SHU term. Id.
the superintendent forwards the Facility Committee's
report and any written response that the inmate submits to a
"Central Office Committee" located at DOCCS
headquarters in Albany, New York, for "Central Office
Review." The Central Office Committee, "consisting
of a representative from the office of facility operations, a
member of [the DOCCS] inspector general's staff, and an
attorney from the office of counsel, " reviews the
Facility Committee's report, develops its own
recommendation whether the inmate continues to pose a safety
threat to the facility, and forwards the paperwork to the
deputy commissioner of DOCCS. Id. §
the deputy commissioner reviews the two committees'
recommendations, as well as the inmate's written
statement when applicable, and decides whether to continue
the inmate in Ad Seg. Id. Once the deputy
commissioner makes a final decision, he or she notifies the
superintendent of the inmate's prison facility, who
provides written notice to the inmate of the decision and its
"reason(s), " and a statement notifying the inmate
of his right to submit a written statement in the next
section 301.4(d) review. Id. § 301.4(d)(4).
is currently held under Ad Seg in the SHU at the Upstate
Correctional Facility. He is serving a state prison term of
thirty-two-and-one-half years to life for second-degree
murder and attempted escape and is first eligible for parole
in 2024. Proctor previously served two other terms in state
prison for convictions of, inter alia, burglary,
robbery, and assault.
early years in prison (in the 1980s and early 1990s) were
marked by violence and dangerous defiance of the law. Proctor
stabbed an inmate. He "absconded from a job search from
the Edgecombe Correctional Facility." Proctor v.
Kelly, No. 9:05-cv-0692, 2008 WL 5243925, at *14
(N.D.N.Y. Dec. 16, 2008) ("Proctor I")
(Suddaby, J.) (internal quotation marks omitted). He
attempted to escape from a police vehicle by unlocking his
handcuffs and kicking a window. See id at *16. He
professed a desire to be "more famous than Willie
Bosket, " a notorious prisoner in DOCCS. Id. at
*14. And he used a prison telephone to solicit
(unsuccessfully) another person to firebomb a residence.
Id. at *16.
defiance reached its apex in November 1994, when he and three
inmate-accomplices executed an elaborate escape from
Shawangunk Correctional Facility, a maximum security
facility. DOCCS officials apprehended Proctor after
he had been at large for about five hours. Disciplinary
proceedings against Proctor for his escape resulted in a
sentence of ten years of Disciplinary Segregation in the SHU.
behavior in the SHU under Disciplinary Segregation varied.
For the first three years of his SHU term, he continued his
defiance. Proctor managed to remove his handcuffs without
permission while in his cell. See Proctor I, 2008 WL
5243925, at *14. He threw feces at DOCCS officials. See
id. at *16. He twice set fire to his cell. Id.
at *14, *16. He concealed a razor in his rectum. Id.
He stabbed another inmate. Id. And he received
disciplinary reports for "disorderly conduct, fighting,
harassment, movement violations, refusing direct orders, and
violent conduct." Id. at *14. Later in his time
in Disciplinary Segregation, however, Proctor's behavior
improved considerably. Defendants recount in their brief in
this Court that "[b]ecause [Proctor] . . . had periods
of good behavior while in [the] SHU, over time, DOCCS
gradually reduced his [Disciplinary Segregation] penalty to
nine years and one month." Appellees' Br. 10.
day he was scheduled to be released from Disciplinary
Segregation, DOCCS served Proctor with an "[Ad Seg]
Recommendation" and retained him in the SHU. Proctor
I, 2008 WL 5243925, at *10. DOCCS held a hearing shortly
thereafter to determine if Proctor was appropriate for Ad
Seg. See id. at *15. The hearing officer found that
Proctor posed a threat to the prison facility based on
Proctor's criminal history and misbehavior, including his
1994 escape and his early behavior in Disciplinary
Segregation. See id. at *10. As a result, as soon as
Proctor's Disciplinary Segregation ended, DOCCS retained
him in the SHU under Ad Seg, where he has spent the last
thirteen years and remains today.
behavioral record in Ad Seg has not been spotless. In the
first few years, Proctor received "minimal"
disciplinary reports for possession of contraband, lewd
exposure, and "unhygienic acts, littering and
harassment." J.A. 334, 348. In the last decade, he has
committed two unhygienic acts and possessed one unidentified
weapon. At times, he can be argumentative with his fellow Ad
the main, Proctor's behavior has remained positive. He
has gone long stretches-including one period of almost four
years-without any disciplinary reports. See J.A.
320-34 (fourteen months without a disciplinary report),
342-91 (almost four years without a disciplinary report),
395-424 (twenty months without a disciplinary report), 429-55
(twenty months without a disciplinary report). Particularly
in the last eight years, DOCCS has observed that Proctor has
made "an extensive effort to minimize his disciplinary
violations." J.A. 374. He received just one disciplinary
report between December 2011 and the close of the ...