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noting that periodic reviews do not require the presence of the accused and do not require the reviewer to "always consider new information, since the original reasons for placing the inmate in [administrative segregation] may continue to be compelling"
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89-CV-727(C)
May 16, 2000
PRISONERS' LEGAL SERVICES OF NEW YORK (CHERYL MAXWELL, ESQ., of Counsel), Plattsburgh, New York, for Plaintiff.
ELIOT SPITZER, ATTORNEY GENERAL OF THE STATE OF NEW YORK (MARY C. BAUMGARTEN, Assistant New York State Attorney General, of Counsel), Buffalo, New York, for Defendants.
DECISION AND ORDER
INTRODUCTION
Plaintiff Julio Giano ("Giano"), a prisoner in the custody of the New York State Department of Correctional Services ("DOCS"), was confined in administrative segregation ("AS") at Attica Correctional Facility ("Attica") between October 1988 and August 1990. Giano claims that the defendants, DOCS Commissioner Thomas A. Coughlin III ("Coughlin") and other officials at Attica, never engaged in meaningful, periodic reviews of his AS confinement and thus deprived him of liberty without due process. Defendant Coughlin denies any personal involvement in the alleged denial of Giano's rights, and all defendants assert that they are entitled to qualified immunity from liability. Defendants also contest the merits of Giano's claims. They contend that: (1) that the conditions of Giano's confinement were not so atypical as to implicate a liberty interest protected by due process; (2) they provided meaningful reviews of Giano's status; and (3) he would have remained in AS regardless of the reviews that they accorded him; hence, he was not harmed by any violation of his right to due process.
As discussed below, there was no discrete AS unit at Attica. AS prisoners were housed with disciplinary prisoners in the Special Housing Unit ("SHU"). Parties and witnesses used the term to describe both the status of AS prisoners and their housing location.
On May 12, 13, 14, and 15, 1997, this court conducted a bench trial on Giano's claim. The parties have submitted proposed findings of fact and conclusions of law, as well as supporting memoranda of law. Now, upon the testimony and evidence submitted, and on all proceedings held hereto, this court finds that Giano's AS confinement implicated a liberty interest protected by due process, that defendants failed to meaningfully review Giano's AS status and therefore denied him due process, and that Giano's time in AS was prolonged as a consequence of defendants' failure to meaningfully review his status. This court also finds that Coughlin was personally involved in the denial of Giano's rights, that defendants are not entitled to qualified immunity, and that Giano is entitled to compensation.
PROCEDURAL HISTORY
Giano filed his complaint in June 1989. He was granted permission to file an amended complaint, which he filed in September 1991 (Item 59). The claims in the amended complaint related both to Giano's initial transfer to AS and to the subsequent review of his status. However, nine of the ten claims have been dismissed. In September 1992, this court granted summary judgment on Giano's first six claims which related to the hearing held when he was first transferred to AS. The claims were dismissed based on collateral estoppel, since they had been determined in a prior state court proceeding (Item 71). Giano's eighth claim was dismissed upon the stipulation of the parties in August 1995 (Item 144).
Giano then moved for partial summary judgment on his ninth and tenth claims, and defendants cross-moved for summary judgment on those claims. This court granted summary judgment to defendants on the ninth claim, which alleged denial of equal protection, finding that that claim had also been determined in the state court proceeding. Giano v. Kelly, 869 F. Supp. 143, 147 (W.D.N.Y. 1994). However, the court denied summary judgment to both sides on the tenth claim, which alleged that defendants failed to provide meaningful, periodic reviews of Giano's status, finding that material factual issues precluded summary judgment on that claim. Id. at 149-50.
Following the Supreme Court's decision in Sandin v. Connor, 515 U.S. 472 (1995), defendants again moved for summary judgment on Giano's tenth claim. This court denied the motion, finding that Giano's AS confinement was an "atypical and significant hardship" as defined in Sandin, which implicated a liberty interest protected by due process (Item 160 at 8). This court also reiterated its prior holding that there were material issues of fact as to whether defendants engaged in meaningful, periodic reviews of Giano's status. Id. at 9-10 (citing Giano, 869 F. Supp. at 148).
Defendants then moved for partial summary judgment on Giano's seventh claim: that conditions in AS amounted to cruel and unusual punishment in violation of the Eighth Amendment. On May 7, 1997, this court granted defendants' motion, holding that Giano had not alleged facts that would support a finding that AS conditions objectively violated Eighth Amendment standards (Item 177 at 5-6).
DISCUSSION
I. Liberty Interest
To prevail on his claim, Giano must prove that: (1) his AS confinement implicated a liberty interest protected by due process; (2) defendants denied him due process by failing to review his confinement in a meaningful fashion; and (3) he would have been released from AS had there been a meaningful review of his status. In a prior decision, this court held that Giano's AS confinement did implicate a liberty interest (Item 160 at 8). Defendants urge the court to reconsider that holding. Given the Second Circuit's admonition to "examine the specific circumstances" when a Sandin liberty interest is at issue, this court will reconsider its prior holding in light of the testimony and evidence adduced at trial. Brooks v. DiFasi, 112 F.3d 46, 49 (2d Cir. 1997). The liberty interest question is a threshold issue; if no such interest was implicated by Giano's AS confinement, the court would end its inquiry and defendants would prevail.
A. Sandin v. Connor
The Fourteenth Amendment provides that the state may not deprive a person of liberty without due process. A constitutionally protected liberty interest may arise directly from the Due Process Clause or from state law. Hewitt v. Helms, 459 U.S. 460, 466 (1983). In Hewitt, the Supreme Court held that a state statute or regulation creates a liberty interest if it is couched in "language of an unmistakably mandatory character, requiring that certain procedures `shall,' `will,' or `must' be employed," and if it requires a specific substantive predicate to the deprivation. 459 U.S. at 471-72. However, application of Hewitt to prison rules proved to be unworkable. As the Supreme Court later noted in Sandin: "By shifting the focus of the liberty interest inquiry to one based on the language of a particular regulation, and not the nature of the deprivation . . . [ Hewitt] encouraged prisoners to comb regulations in search of mandatory language on which to base entitlements to various state-conferred privileges." 515 U.S. at 481. Hewitts application to prison rules not only prompted states to codify prison procedures reluctantly (for fear that they would create protected liberty interests), but it also forced courts to squander valuable judicial resources by becoming involved in the day-to-day management of prisons. Id.
As a result, the Court in Sandin held:
States may under certain circumstances create liberty interests which are protected by the Due Process Clause. But these interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force . . . nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.515 U.S. at 483-84 (citation omitted). This atypicality requirement is not a substitute for the Hewitt requirement, but an additional component in the analysis. Thus, Giano's AS confinement implicated due process only if it was an atypical and significant hardship and if DOCS regulations conferred a liberty interest in remaining free from such confinement. See Sealey v. Giltner, 197 F.3d 578, 584-85 (2d Cir. 1999); Frazier v. Coughlin, 81 F.3d 313, 317 (2d Cir. 1996). Defendants argue alternatively that DOCS regulations are not couched in language that confers a liberty interest, and that the conditions of Giano's confinement were not so atypical as to implicate a liberty interest.
B. DOCS regulations
Defendants argue that "[n]o New York statute or regulation gives an inmate an entitlement to avoid [AS] or to remain in general population ("GP"). . . ." Item 188, pp. 7-8. However, it is clear that DOCS regulations are couched in language that creates a liberty interest. First, the regulations provide that an inmate may be confined in AS only if his presence in GP poses a threat to the safety and security of the facility. 7 N.Y.C.R.R. § 301.4(b). An inmate may not be placed in AS unless this standard is met. Second, the regulations set forth procedures which must be followed when an inmate is transferred to AS. The inmate must receive a hearing similar to that provided to disciplinary SHU inmates. Id. § 301.4(a). That is: (1) the inmate must receive written notice, in his native language, of the reason for his confinement, id. § 254.2; (2) an employee assistant must meet with the inmate if he does not understand English, or is confined to SHU pending the hearing, id. § 251-4.1; (3) the hearing must be conducted by an impartial hearing officer who was not involved in the incident; id. § 254.1; (4) the inmate must be permitted to attend the hearing unless he is disruptive; and must be permitted to submit documents and call witnesses, unless the hearing officer finds that they are redundant or irrelevant, Id. §§ 254.5, 254.6(b); (5) the hearing must be electronically recorded and must be completed within 14 days, Id. §§ 251-5(b), 254.6(b); and (6) the hearing officer must render a written decision setting forth the basis for his determination, and the inmate must receive a copy of the determination and be informed of his right to an administrative appeal, Id. §§ 254.7, 254.8. All of these requirements are mandatory. While, for example, a hearing officer has some discretion to deny a request to present redundant testimony, he may not ignore procedures defined in the regulations (e.g., denying a request to hear any witnesses at all).
In light of the foregoing, the court finds that the DOCS regulations are couched in mandatory language and require a substantive predicate for AS confinement. Therefore, the DOCS regulations meet the Hewitt criteria for creation of a liberty interest. See McClary v. Kelly, 4 F. Supp.2d 195, 211-212 (W.D.N.Y. 1998); Edmonson v. Coughlin, 21 F. Supp.2d 242, 248 (W.D.N.Y. 1998); cf. Tellier v. Scott, 49 F. Supp.2d 607, 610-11 (S.D.N.Y. 1998) (noting similarity of Federal and New York AS regulations, and finding that Federal regulation creates a liberty interest).
In support of their position, defendants cite Frazier, 81 F.2d at 317. In essence, defendants argue that after Sandin, New York's regulations may not serve as the predicate for a liberty interest. However, Frazier did not hold that a liberty interest could never be implicated by DOCS regulations. Rather, the court in Frazier held that a liberty interest could no longer be based solely on the language of those regulations, as had been the case under Hewitt, and that the plaintiff must also establish that his confinement was a atypical. Id. Defendants also rely on Rodriguez v. Phillips, 66 F.3d 470, 478 (2d Cir. 1995), where the court of appeals observed that " Sandin may be read as calling into question" prior decisions that found a liberty interest implicated by short-term confinement in AS. Id. at 480. However, that observation is based on the obvious fact that a brief stint in AS cannot be considered "atypical" under Sandin. As the Second Circuit recently noted, "[w]e have never held that New York prisoners have no liberty interest in avoiding long-term [AS]." Brooks v. DiFasi, 112 F.3d 46, 49 (2d Cir. 1997).
In Sealey, the Second Circuit explicitly rejected the argument that DOCS AS regulations never implicate a liberty interest. Stating that " Sandin does not go that far," the court reasoned as follows.
[DOCS] regulations specify that "[AS] results from a determination by the facility that the inmate's presence in [GP] would pose a threat to the safety and security of the facility". . . . [Since] the Supreme Court acknowledged that a liberty interest exists when state law requires a substantive factual predicate for atypical restricted confinement, it is difficult to see why such an interest should not arise when such confinement is imposed for administrative reasons after determination that a required factual predicate has been established. If an inmate is to be placed in atypical confinement (considering both the conditions and the duration) after being determined, for example, to be a threat to prison safety, he should have some procedural due process surrounding the determination that he poses such a threat. That is the teaching of Hewitt and if Sandin had meant to override Hewitt to the extent of precluding a protected liberty interest for all [AS] confinements, we would expect to see more pointed language to that effect.Sealey, 197 F.3d at 585 (internal citations omitted).
Nevertheless, defendants "urge this Court to follow the precedent established in other circuits and reject the argument that confinement to [AS] imposes atypical or significant hardship which would create a liberty interest." Item 188, p. 11. However, in most of the cases cited by defendants, the holding is not so broad. For example, the court in Griffin v. Vaughn, 112 F.3d 703, 709 (3d Cir. 1997), simply held that the plaintiff "was neither committed nor confined to administrative custody for an atypical period of time." Similarly, the court in Mackey v. Dyke, 111 F.3d 460, 463 (6th Cir.), cert. denied, 522 U.S. 848 (1997), held that 117 days' AS confinement was not so atypical as to implicate a liberty interest under Sandin.
Rimmer-Bey v. Brown, 62 F.3d 789 (6th Cir. 1995), is also inapposite. Rimmer-Bey involved Michigan's correctional policy in which an inmate accused of a rule infraction is given a hearing and, if found guilty, serves a short time in disciplinary SHU and then is reclassified as AS. Plaintiff Rimmer-Bey had been found guilty of stabbing an officer. After thirty days in disciplinary SHU, he was converted to AS. The court rejected his argument that a new liberty interest was implicated when he was reclassified as AS, holding that he received adequate due process at the time he was found guilty of the disciplinary infraction. Id. at 790-91.
Two of the cases cited by defendants could be read as suggesting that AS by definition never implicates a liberty interest under Sandin. Pichardo v. Kinker, 73 F.3d 612, 613 (5th Cir. 1996); Taylor v. Reynolds, 76 F.3d 380 (table), 1996 WL 28842 (6th Cir. 1996). However, such a holding is directly contrary to Sealey. Therefore, the court does not find those decisions to be persuasive authority. Instead, this court finds that DOCS AS regulations are couched in language that implicates a liberty interest under Sandin.
C. "ATYPICAL AND SIGNIFICANT HARDSHIP"
To determine whether Giano's AS confinement was an atypical and significant hardship in relation to ordinary prison life, this court must consider both the duration and extent of the deprivation "since especially harsh conditions endured for a brief interval and somewhat harsh conditions endured for a prolonged interval might both be atypical." Sealey, 197 F.3d at 586; cf. Arce v. Walker, 139 F.3d 329, 336-37 (2d Cir. 1998); Brooks, 112 F.3d at 48. The same analysis is required for AS and disciplinary SHU. In either case, the focus is on the duration and extent of the deprivation. Sealey, 197 F.3d at 582.
1. Duration of AS confinement.
Giano argues that this court must consider the potential duration of his AS confinement in deciding whether that confinement was atypical. Since inmates are confined to AS for an undefined period, Giano reasons that the potential duration of his confinement was the length of his prison sentence. Defendants argue that the court must consider the actual length of Giano's confinement. The Second Circuit resolved this issue in Scott v. Albury, 138 F.3d 474, 477-78 (2d Cir. 1998), holding that the Sandin analysis is based on the actual length of the inmate's SHU confinement.
2. "Ordinary incidents of prison life"
The parties also disagree as to how this court should identify the "ordinary incidents of prison life. . . ." Sandin, 515 U.S. at 484. Defendants note that prior to arriving at Attica, Giano spent most of his prison term in protective custody, keeplock, or disciplinary SHU. Thus, defendants argue that SHU conditions were the "ordinary incidents" of Giano's prison life.
Defendants' argument turns the logic of Sandin on its head. That is, defendants imply that an inmate condemned to spend his entire life in SHU could not claim a liberty interest, since for him, such a regimen would be "typical." Under Sandin, it is clear that the court must assess atypicality in relation to the experience of inmates generally, not to the specific conditions experienced by a particular plaintiff.
The definition of the "ordinary incidents of prison life," however, is still open to some dispute. The Second Circuit recently identified three "subsidiary issues":
First, to what type of confinement is the challenged confinement to be compared? Second . . . is the comparison to conditions at the inmate's prison, all prisons in the state system, or all prisons in the nation? Third, if the conditions of confinement and their duration . . ., are deemed to impose a significant hardship, what base is to be used in determining whether the hardship is imposed so infrequently as to render the challenged confinement atypical?Sealey, 197 F.3d at 588. Sealey did not provide definitive answers to any of these questions. However, the court in Sealey did note that the trial court had compared Sealey's AS confinement to conditions in GP at the prison where he was housed, and held that that comparison was adequate to sustain the trial court's findings on the Sandin issue. Sealey, 197 F.3d at 588-89.
In the present case, testimony and evidence focused on a comparison of AS conditions which Giano endured with typical conditions in Attica's GP. This court will base its Sandin analysis on that comparison. Although they disagree as to the criteria to be applied and legal conclusion to be drawn, the parties are in substantial agreement as to the differences between AS and GP at Attica.
For Sandin purposes, the relevant time frame is the period when Giano was confined in AS. The court uses the present tense to indicate conditions that have remained constant since Giano's AS confinement, and the past tense where there is a possibility that conditions have changed since his release from AS.
AS inmates are housed in SHU and are subject to most restrictions that apply to disciplinary SHU inmates. Stipulation, Item 193 ("Stip."), ¶ 4. DOCS regulations define SHU as "single occupancy cells grouped so as to provide separation from [GP]." 7 N YC.R.R. § 300.2(b). While any inmate is isolated from the outside world, SHU inmates experience significantly more isolation than GP inmates.
Most GP inmates have job assignments, vocational training, or classroom instruction. Thus, GP inmates spend a significant part of the day engaged in some form of organized, meaningful activity. Many GP inmates also participate in supportive programs, such as drug or alcohol counseling or the alternatives to violence program — all of which typically occur in a group setting. GP inmates also interact during meals, religious services, recreation time, meetings of inmate organizations, and special events, such as film programs and library "call-outs." With respect to recreation time, GP inmates have group recreation approximately five to six hours on weekdays and six to seven hours on weekends, during which they can engage in team sports and have access to basketball, baseball, football, and weightlifting equipment. Stip., ¶¶ 13, 15, 17, 19, 22, 23, 25.
By contrast, SHU Inmates are confined to their cells approximately 23 hours per day. They are permitted to leave their cells for one hour of "recreation" per day, two showers per week, legal visits, and one non-legal visit per week. SHU inmates eat meals alone in their cells and are not permitted to participate in any group activities. They do not have work assignments and cannot attend vocational programs, academic classes, religious services, or group counseling sessions. Medical or mental health services are provided by staff during rounds of the unit, or in a "call-out," in which the inmate is escorted to an interview room. During "call-outs," SHU inmates are kept separate from each other. The only educational opportunity for SHU inmates is the cell study program, in which books and material are brought to the cells. Stip., ¶¶ 18, 22, 24, 26, 28, 46, 64-66. Furthermore, an SHU inmate's hour of "recreation" differs little from the other twenty-three hours in his day. At the time of Giano's confinement, SHU exercise cells were ten by twenty feet, with concrete walls and a mesh ceiling. The inmate was locked in the cell by himself and had no equipment of any kind (Stip., ¶ 10). The exercise cells were exposed to the elements and, according to Giano, were often "unbearably hot" in the summer and often filled with snow and ice in the winter (T. 39).
An inmate's contact with the outside world is also much more restricted in SHU than it is in GP. At the time of Giano's AS confinement, there was no limit on the weekly number of visits or telephone calls for GP inmates. An SHU inmate, however, was limited to one nonlegal visit per week and could make a telephone call only if he obtained permission from prison officials in the event of an emergency (T. 41). SHU inmates were also subject to restrictions regarding the personal items that they could keep in their cells, purchases from the prison commissary, and the contents of packages from friends or families. Stip., ¶¶ 35-39, 56-57.
Giano also testified that SHU was often very noisy, since the only form of contact between inmates was to yell back and forth (T. 42). He testified that cells were often "filthy," and that the unit was often dark, because, "a lot of the windows are covered up because either they've been broken or [the staff does not want SHU inmates] making any visual contact with [GP] inmates, who normally work on the grounds." ( Id.)
Here, the court recognizes that while most GP inmates have work assignments, classes, or vocational programs, there are also a number of inmates at any given time who do not have access to such programs because of staffing or space limitations. The court also recognizes that GP inmates spend a significant part of each day locked in their cells and are subject to occasional facility "lock downs." Thus, at one time or another, any DOCS inmate can expect to endure the types of deprivation that occur in SHU. However, while most inmates experience periods of inactivity or cell confinement, long-term isolation and idleness are far less typical outside of SHU. Moreover, defendants admit that few, if any, GP inmates would be confined to their cells like Giano was, with no social interaction for as long as one year at a time.
Many courts have taken notice of the often-debilitating effects of long-term segregation in prisons. As the court observed in McClary "A conclusion . . . that prolonged isolation from social and environmental stimulation increases the risk of developing mental illness does not strike this Court as rocket science." 4 F. Supp.2d at 208; see also Davenport v. DeRobertis, 844 F.2d 1310, 1316 (7th Cir.), cert. denied, 488 U.S. 908 (1988) (noting that there is "plenty of medical and psychological literature concerning the ill effects" of segregation of prison inmates); "Solitary Confinement: Legal and Psychological Conditions," 15 New England J. Crim. Civ. Confinement 301 (1989). Although Giano does not claim that he suffered such symptomology during his time in AS, the often-devastating effect of prolonged isolation and inactivity on the segregated inmates is a factor that this court cannot ignore, particularly in cases such as the present one, in which segregated confinement continued for more than one year.
In Sealey, the Second Circuit emphasized that there is a "point . . ., beyond which confinement in harsh conditions constitutes atypicality." 197 F.3d at 587. The court in Sealey, however, did not specifically identify when that point is reached. Id. Atypicality depends on both the duration and degree of deprivation. Since the degree of deprivation will vary from case to case, there likely will not be a per se cutoff point after which a confinement becomes atypical.
Sealey upheld the trial court's finding that 101 days in SHU was not atypical, Id.; and it is probably safe to presume that SHU terms of that length or less will not implicate a liberty interest under Sandin. In a footnote, the court prefaced a hypothetical with the statement, "for example, if conditions were of sufficient harshness that confinement for 365 days constituted atypicality. . . ." Sealey, at 587 n. 7. Although that statement certainly cannot be considered as defining a "cutoff point," it might conceivably reflect the Second Circuit's notion of the approximate duration of SHU confinement that is so atypical as to implicate a liberty interest under Sandin.
Giano was housed in Attica's SHU from November 1, 1988 until August 5, 1990. Stip. ¶ 7. Although he was temporarily transferred to other facilities four times during this period, Stip. ¶ 6, the duration of his AS confinement at Attica must be considered in the aggregate for Sandin purposes. See Sealey, 197 F.3d at 586. Thus, excluding the time at the other facilities, Giano experienced SHU conditions for well in excess of one year. It is that length of time in AS, then, that is relevant for Sandin purposes.
While in AS, Giano was denied virtually all meaningful social contact with other inmates. In addition, Giano had no access to structured activities, such as a job assignment, classroom instruction, group recreation, or religious observances. For all practical purposes, his life was confined to a cell roughly ten feet by ten feet, save for an hour per day when he was confined to a cell approximately twice as large for "recreation." Contact with the outside world was similarly restricted. Although GP inmates are locked in their cells for about half of each day and are subjected to occasional facility "lock downs," those cell confinements are for much shorter periods of time, and it would clearly be atypical for a GP inmate to be subjected to the deprivations which Giano endured for anywhere near as long as the time he spent in AS. Given the degree of deprivation which Giano endured and the duration of that deprivation, this court finds that his AS confinement imposed atypical and significant hardship on him in relation to the ordinary incidents of prison life, Sandin, 515 U.S. at 483-84, and implicated a liberty interest protected by due process.
II. Due Process
A. Events Prior to Giano's Confinement in Administrative Segregation
The court must now determine whether defendants afforded Giano due process in their periodic review of his AS status. In order to address this question, it is necessary to clarify defendants' reasons for maintaining Giano in AS. Witnesses and exhibits in the bench trial referred to several key events that had some bearing on Giano's AS confinement: (1) his conviction for murder, burglary, and robbery; (2) an attempted escape from Nassau County Court and a successful escape from Sing Sing Correctional Facility; (3) an assault at Shawangunk Correctional Facility, in which another inmate stabbed Giano ("the stabbing"); and (4) an inmate disturbance at Shawangunk ("the disturbance"). Some familiarity with these incidents is essential to an understanding of defendants' rationales for placing and keeping Giano in AS.
1. Giano's criminal convictions.
On February 19, 1985, Giano was convicted, at a jury trial, of second-degree murder, first-degree burglary, and first-degree robbery (T. 51). He was given consecutive sentences of 25 years to life on the murder conviction, and 8 1/3 to 25 years for both the robbery and burglary convictions. The jury found that Giano and Curtis Harris had forcibly robbed Giano's former girlfriend, Vickey Ketsoflou, in her apartment and that Giano had killed Ketsoflou. Giano had planned the robbery and convinced Harris, whom he had met in prison while serving a prior sentence, to assist him (T. 52).
2. Giano's history of escapes.
On September 21, 1984, while awaiting trial on the above charges, Giano and Harris attempted to escape from Nassau County Court. As they entered an elevator in the courthouse, they sprayed ammonia in the eyes of several court officers. During the ensuing struggle, they seized a gun from one of the officers, and Harris shot an officer in the head. Another officer was severely beaten. The escape was thwarted when one of the officers shot Harris. Giano subsequently pled guilty to second-degree attempted murder and was sentenced to an additional 6 1/2 to 19 1/2 years (T. 13, 56).
On December 9, 1986, Giano and two other inmates escaped from Sing Sing. Giano planned the escape. After a fire was set in one of the prison buildings, creating a diversion, the escapees ran to a perimeter fence and used contraband wire clippers to cut through barbed wire. They climbed down a slope to train tracks using a 35-foot-long rope that Giano had made out of shoelaces he obtained from other inmates. Giano remained at large for two days (T. 63-67). Superintendent Kelly testified that it was, to his knowledge, the only successful escape from Sing Sing (T. 201). Giano was convicted of first-degree escape and sentenced to two to four years' imprisonment consecutive to his other sentences (T. 14). He also received a five-year term in SHU as a disciplinary sanction for violating DOCS rules. Id.
3. Assault on Giano
After serving some of his SHU time at Sing Sing, Giano was transferred to Shawangunk, where he remained in SHU. In July 1988, because of a shortage of cells on the unit, Giano was given an early release from SHU and placed in the Close Supervision Unit ("CSU") (T. 73, 106). CSU is specifically designed to house inmates considered to be security risks. It is a small unit with only 64 cells, and is almost entirely self-contained. CSU inmates are permitted out of their cells during the day and may interact with each other; however, they have no contact with inmates in other parts of the facility and their activities are closely monitored throughout the day. At that time, Shawangunk's CSU was the only such unit in the DOCS system (T. 122-25).
Giano was placed on "walk in" keeplock status in CSU. "Walk in" keeplock inmates can go to work assignments, classes, or other programs, but they must remain in their cells at other times (T. 15). Giano was released from "walk in" keeplock on September 7, 1988; however, he remained in CSU. Five days later, Giano was stabbed by another inmate (T. 107). He suffered a serious puncture wound to his lung and was sent to an outside hospital for treatment. On returning to Shawangunk, he was placed in involuntary protective custody ("IPC") (T. 117).
When interviewed by DOCS officials and a State Police investigator, Giano refused to identify his assailant (T. 26, Pltf's Exh. 27). At trial, he testified that it was "common practice in prison to pass the word on of any inmate who cooperates with the administration," and that, given the length of his sentence, he would have put his life in serious danger if he identified his assailant (T. 23). This testimony is consistent with the explanation that he gave at his IPC hearing (Pltf's Exh. 30 at 3), and at least two DOCS officials confirmed that Giano's fears were well-founded (T. 215, 320-21). However, Melvin Richardson, an inmate who had witnessed the stabbing, informed authorities that the perpetrator was another inmate named John Ramsey (T. 143, Pltf's Exhs. 12, 26, 27). Ramsey was subjected to a disciplinary hearing and found guilty of the assault (Defs' Exh. 2). At the hearing, a DOCS official described an interview in which Giano, although declining to name his assailant, explained that the assault occurred because the assailant thought Giano had accused him of making a homosexual approach on an officer (T. 320).
4. Inmate disturbance
On October 4, 1988, inmates engaged in a "sit-in" demonstration in a mess hall at Shawangunk. The demonstration led to a violent confrontation with guards, which ultimately resulted in an extended "lock down" of one cell block (T. 118-19, 131-32). At the time, Giano was housed in IPC, and he had no access to any of the inmates involved in the disturbance (T. 119). However, the officials apparently suspected that Giano's stabbing may have been related to the disturbance in some way. As discussed below, a subsequent investigation did not substantiate those suspicions.
B. Placement in Administrative Segregation at Attica
As is customary when an inmate is placed in IPC, Shawangunk submitted a request to transfer Giano to another facility (T. 267). As a result of this request, Giano was transferred to Attica on October 6, 1988. At the time of the transfer, Attica officials were aware of Giano's escape from Sing Sing, the courthouse escape attempt, and the stabbing (T. 200-01). However, although Shawangunk authorities had been informed prior to the transfer that Ramsey was Giano's assailant (T. 117-18, Pltf's Exh. 26), that information apparently was not provided to Attica.
Upon arriving at Attica, Giano was placed in SHU. When Deputy Superintendent Hans Walker ("Walker") conducted rounds in SHU a few days after Giano's arrival, Giano asked Walker why he had to stay in SHU. Walker, who was not familiar with Giano's case, then asked Attica Superintendent Walter Kelly ("Kelly") why Giano was in SHU (T. 211-21). Walker and Kelly then spoke by telephone with Commissioner Coughlin.
There is some dispute as to the substance of that conversation. According to Giano, Walker told him that Coughlin threatened to keep Giano in SHU "if I didn't cooperate with the incident, the stabbing, identify my assailant, and give any particulars I know regarding the sit-in. . . ." (T. 36.) Defendants deny that Coughlin had any involvement in the decision to maintain Giano in AS. However, Kelly and Walker agree that they discussed the Shawangunk disturbance and the stabbing, and that Coughlin questioned whether the incidents were related (T. 166, 211-13). Since Kelly and Walker had little information regarding either incident, Coughlin suggested asking Giano about them (T. 212). When Walker again spoke with Giano, he denied any involvement in the disturbance and also denied that the stabbing had anything to do with the disturbance (T. 212-15). None of the witnesses at the trial suggested that there was a connection between the Shawangunk incidents, and there is no evidence to suggest that they were connected or that Giano was involved in the disturbance.
Shawangunk Superintendent Louis F. Mann testified that he had no reason to believe that the stabbing and disturbance were related (T. 120). Defendants apparently never discussed this question with Mann, and it is not clear why they thought there might be a connection between the incidents.
On October 17, 1988, Giano was served with a notice stating that he was confined in AS because he had been stabbed at Shawangunk, and because his "notoriety from 2 escapes mak[es] him a high escape risk" (Pltf's Exh. 16 at 2). On November 1, 1988, Hearing Officer Joseph Kihl ("Officer Kihl") conducted a hearing to review Giano's AS confinement. Giano denied any involvement in the disturbance and disclaimed any connection between the disturbance and the stabbing ( id. at 10-12). At the hearing, Giano contended that Coughlin ordered his AS confinement in order to coerce Giano into cooperating with the investigation of the Shawangunk incidents ( id.). Walker confirmed that he discussed Giano's status with Kelly and Coughlin and, upon Coughlin's suggestion, had asked Giano about the Shawangunk incidents. However, Walker denied that Coughlin ordered Giano's placement in AS or that the placement was because of the Shawangunk disturbance. Walker stated that Giano was placed in AS because of the escape attempts, the stabbing, and his refusal to identify his assailant ( id. at 15-23). Deputy Hall then testified that he authorized the AS placement, and that the critical factors in that decision were Giano's escape from a maximum security facility and the stabbing ( id. at 36).
At the conclusion of the November 1998 hearing, Officer Kihl held that Giano presented a security risk to the facility and upheld his AS confinement "with 7 day review" (id. at 53). After submitting and losing an administrative appeal, Giano filed a state court proceeding, challenging Officer Kihl's determination. The proceeding was transferred to the Appellate Division, Fourth Department, which affirmed Officer Kihl's decision. Giano v. Coughlin, 559 N.Y.S.2d 210 (1990).
C. Periodic Review of Giano's Confinement
1. Disciplinary SHU and Administrative Segregation SHU
DOCS regulations define the bases for admission to SHU. "Disciplinary" and "AS" admissions are the bases for admission that are most pertinent to the present discussion. Disciplinary admission is based on a determination that the inmate violated DOCS Standards of Inmate Behavior. 7 N.Y.C.R.R. § 301.2. AS admission is based on a determination "that the inmate's presence in [GP] would pose a threat to the safety and security of the facility." Id. § 301.4(b). Disciplinary SHU is imposed as punishment for wrongdoing, whereas AS does not purport to be punishment. Disciplinary SHU is imposed for a definite period of time as determined at the inmate's hearing, while AS confinement lasts until the Superintendent decides to release the inmate from SHU. Id. §§ 301.2(a), 304(d).
2. Regulations and mandatory procedures
The regulations provide for an initial hearing to review an inmate's transfer to AS, id. § 301.4(a), and also provide:
[I]nmates assigned to [AS] status shall have such status reviewed every seven days for the first two months, and every 30 days thereafter, by a three-member committee consisting of a representative of the facility executive staff, a security supervisor, and a member of the guidance and counseling staff. The results of such review shall be forwarded, in writing, to the superintendent for final determination.Id. § 301.4(d). However, the regulations do not describe procedures to be followed by the Committee or the Superintendent in reviewing AS cases. DOCS witnesses agreed that review by the AS Committee is much less formal than the review is at an initial hearing. For example, the Committee is not required to inform the inmate that a meeting will take place. Further, the inmate is not entitled to appear before or submit information to the Committee, and there are no steps that Committee members are required to take to ascertain relevant facts, such as review of the inmate's institutional records. Although the regulation requires that the AS Committee forward "results" of its review to the Superintendent, it does not specify the content of the "results." Apparently, the content of the results need only consist of the conclusion ("retain" or "release") and a rationale that can be repeated in rote fashion following each session. There is no requirement that the inmate receive notice of the Committee's recommendation or the Superintendent's determination (T. 186-90, 246-55, 274, 301-04, 339-51, 360-62).
The Attica AS Committee's recommendations were recorded in memoranda to Kelly. All of the memoranda in Giano's case are virtually identical. Each memorandum states:
Giano. Julio 85-A-3468: Inmate was initially placed in [AS] upon his arrival at this facility from Shawangunk Correctional Facility due to incidents he was involved in in Shawangunk that posed a serious threat to the security of that facility or any other facility in which he is housed.
(Pitf's Exh. 17). Each memorandum also includes a line that reads:
"RECOMMENDATION: Retain _______Release: _______," with three checkmarks after the word "retain," followed by the signatures of the committee members for the week ( id.)
The first memo in Plaintiff's Exhibit 17 is dated February 21, 1989. Kelly testified that he did not recall whether Giano's status was reviewed prior to that date (T. 194-97). However, Hall testified that the Committee reviewed Giano's status weekly, beginning in November 1988 (T. 239). Defendants' counsel stated that the missing memoranda had been "destroyed in the ordinary course of business." ( Id.) Some memoranda include additional information. Memoranda issued during times when Giano was out to court reflect that fact (e.g., Exhs. 17 at 23, 25, 27, 38, 40, 42). Also, later memoranda include the entry, "Transfer denied 11-15-89 Code #28." ( Id. at 55-92.)
These memoranda are of little use in discerning what the AS Committee did during its weekly review of Giano's status. They do not indicate that the Committee ever considered any new information or that it considered any factor other than the "incidents he was involved in in Shawangunk." Indeed, the memoranda do not specify what the Shawangunk "incidents" were. Clearly, the stabbing was one such incident; however, there is no testimony or evidence suggesting that Giano was involved in any other incident at Shawangunk that might justify AS confinement. The fact that the memoranda consistently refer to incidents in the plural suggests the possibility that the Committee concluded that
*** Giano participated in the disturbance at Shawangunk despite the lack of any evidence suggesting that he was involved in that disturbance.
Four members of the AS Committee testified at the trial. Each Committee member stated that his or her weekly recommendations to continue Giano in AS were based on factors not mentioned in the memoranda to Kelly. Hall testified that the most significant factors to him were the stabbing, the escape from Sing Sing, the courthouse escape attempt, and a petition that Giano had circulated among SHU inmates. Hall stressed that the stabbing was never successfully explained. He stated that he "had no way of knowing whether or not that was a closed situation or . . . [whether] other people or other groups . . . might have some interest in" assaulting Giano again (T. 244).
DOCS prohibits inmate petitions (T. 244-45, 269-71; Defs Exh. 6).
Correction Counselor Jerry Algier stressed that the Sing Sing escape showed Giano's ability to plan a complex criminal endeavor and convince other inmates to join him. Algier also noted that Giano was able to elude capture for two days. He stated that the courthouse escape attempt was also significant because of the serious injuries to the court officers (T. 307-08). Algier claimed that he would not have voted to release Giano from AS if Giano had disclosed the identity of his assailant, since the stabbing incident was "one small part in the whole overall review." (T. 312-13).
Correction Counselor Barbara Cudney testified that, for her, the key factors were the escapes, Giano's above-average intelligence, and the fact that he showed no remorse for killing his former girlfriend. She felt that the escapes showed that Giano was able to manipulate his environment and involve other inmates in his plans, and stressed that it is