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Proctor v. Leclaire

United States Court of Appeals, Second Circuit

January 24, 2017

PATRICK PROCTOR, Plaintiff-Appellant,
LUCIEN J. LECLAIRE, JR., former Deputy Commissioner, Department of Corrections and Community Supervision, BRIAN FISCHER, former Commissioner, Department of Corrections and Community Supervision, ANTHONY J. ANNUCCI, Acting Commissioner, Department of Corrections and Community Supervision, JOSEPH BELLNIER, Deputy Commissioner, Department of Corrections and Community Supervision, Defendants-Appellees.

          Argued: September 21, 2016 [*]

         Appeal 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 REMANDED.

          Elliot Harvey Schatmeier (Timothy Gilman, on the brief), Kirkland & Ellis LLP, New York, NY, for Plaintiff-Appellant.

          Brian 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 Defendants-Appellees.

          Before: Katzmann, Chief Judge, Wesley and Hall, Circuit Judges.

          Wesley, Circuit Judge:

         Plaintiff-Appellant 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").

         Proctor 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.

         We 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 further proceedings.




         In the 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.

         Ad Seg 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)

         There 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).

         Section 301.4(d) review, as it manifests itself in this case, is a three-step process.[1] 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.

         Second, 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. § 301.4(d)(3).

         Third, 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).


         Proctor 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.

         Proctor's 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.

         Proctor's 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.[2] 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.

         Proctor's 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.

         On the 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.[3]

         Proctor's 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 Seg inmates.

         But in 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 ...

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