Opinion
91-CV-166 (LEK)
September 5, 2002
MEMORANDUM DECISION AND ORDER
Plaintiff pro se, Julio Giano ("Plaintiff" or "Giano"), brings this action pursuant to 42 U.S.C. § 1983 (1994) alleging that Defendants violated his right to due process by wrongfully placing him in administrative segregation while he was an inmate at Clinton Correctional Facility ("Clinton"), a maximum security prison in the New York State Correctional Services system. Specifically, Plaintiff avers that the initial decision to place him in administrative segregation and subsequent decisions to continue his placement therein were made under false pretenses.
This Court granted summary judgment to Defendants, holding that Giano's ninety-two days of administrative confinement at Clinton did not constitute an "atypical and significant hardship" sufficient to create a liberty interest. On appeal to the Second Circuit Court of Appeals, Giano argued that his prior 670 day administrative segregation at the Attica Correctional Facility ("Attica") should have been considered along with his ninety-two days administrative segregation at Clinton. The Court of Appeals found that Giano's "commutative confinement at Attica and Clinton implicated a liberty interest" and remanded the case to this Court for a determination of whether procedural due process was provided to Giano with respect to his administrative segregation at Clinton. For the following reasons, this Court holds that Defendants' motion for summary judgement is GRANTED and Plaintiff's cross-motion for summary judgment is DENIED.
I. BACKGROUND
Plaintiff first entered the New York State corrections system in August 1985. Prior to this date, Plaintiff attempted to escape from the Nassau County courthouse. During the attempted escape, several court officers were severely injured. Plaintiff first entered Clinton sometime after August 1985, but on July 28, 1986, Plaintiff was transferred from Clinton to Sing Sing Correctional Facility ("Sing Sing") in Ossining, New York. On December 9, 1986, Plaintiff and two other inmates escaped from Sing Sing. Plaintiff was captured soon thereafter and sentenced to five (5) years in the Special Housing Unit ("SHU") at Sing Sing. On December 23, 1987, after spending approximately one year in the SHU at Sing Sing, Plaintiff was transferred to Shawangunk Correctional Facility ("Shawangunk") in Wallkill, New York. Plaintiff spent approximately one more year in Shawangunk's SHU and was then released to the general prison population based on his good behavior.
Special Housing Units are `single occupancy cells grouped so as to provide separation from the general population." N.Y. Comp. Codes R. Regs. tit. 7, § 300.2(b)
On September 12, 1988, an unknown inmate stabbed Plaintiff in the back resulting in a serious injury to Plaintiff's right shoulder. Because of this incident, and Plaintiff's refusal to voluntarily enter protective custody, Plaintiff was placed in Shawangunk's involuntary protective custody ("IPC") unit. Plaintiff spent twenty-nine (29) days in IPC and was then transferred to Attica on October 10, 1988. Upon his arrival at Attica, Plaintiff was placed in administrative segregation because: (1) he had been stabbed by an unknown inmate and (2) his escape record. On August 10, 1990, after six hundred seventy (670) days in administrative segregation at Attica, Plaintiff was transferred back to Clinton.
On August 13, 1990, Giano was served with a recommendation that he be placed in administrative segregation. That recommendation, written by defendant David Armitage ("Armitage"), a sergeant in the New York Department of Correctional Services ("DOCS"), stated the following:
Due to the administration's concern regarding Inmate Giano's transfer to Clinton from Attica Correctional Facility, where he was in administrative segregation status, it has been requested that status be retained at this facility. Inmate Giano is serving time for six (6) felonies, the longest term involving 25 to Life for Murder 2 and the most recent Escape 1, concerning an escape on 12/9/86, from Sing Sing Correctional Facility. Due to this information, Escape from a Max A Facility, it is requested that Giano be placed in Administrative Segregation as he presents a possible threat to the safety and security of the facility.
Defs.' Mem. Summ. J., Ex. N. This recommendation was followed by an Administrative Segregation Admission hearing on August 17, 1990. At the conclusion of the hearing, the hearing officer, defendant Joseph Wood ("Wood"), upheld Armitage's recommendation to place
Prior to the hearing, Giano was provided with an inmate assistant. (Exhibit A, Transcript of Administrative Segregation Custody Hearing, pp. 15-16). During the hearing, Giano was afforded the right to speak on his own behalf and question the witness he called. (See generally, Exhibit A).
Plaintiff in administrative segregation based on the following:
(1) the recommendation written by Sergeant Armitage where it stated that inmate Giano escaped from a maximum security facility on December 9, 1986; (2) Plaintiff's verbal testimony confirming the fact that he escaped from Sing Sing on December 9, 1986; (3) Sergeant Armitage's verbal testimony concerning his review of plaintiff's records which confirmed that Giano was successful in an organized escape from Sing Sing and was also involved in a near successful escape from custody (Nassau County courthouse) which involved serious injury to others; (4) Giano's familiarity with the Clinton Correctional Facility.
Defs.' Mem. Summ. J., Statement of Material Facts at ¶ 16; see also id., Ex. A. at 59. On September 11, 1990, Defendant Donald Selsky ("Selsky"), Director of Special Housing/Inmate Disciplinary Program, affirmed Defendant Wood's findings. (Exhibit Q).
On October 22, 1990, Plaintiff claims his counselor told him that Defendant Daniel Senkowski ("Senkowski") would release him from administrative segregation only if Giano signed a form consenting to being admitted into protective custody. Plaintiff claims he refused the offer because Senkowski would not put it into writing. On October 24, however, Plaintiff accepted Senkowski's offer because he felt his living "conditions would be much better" in Protective Custody rather than in administrative segregation. Approximately one week later, Plaintiff contends that Defendant William Costello ("Costello") and another individual met with him and told him that he would be released from administrative segregation if he signed a waiver releasing Clinton from potential liability for any harm that Plaintiff might incur upon his return to the general population.
Plaintiff signed the waiver but was not immediately released into the general population. Instead, on November 5, 1990, Plaintiff was placed in the Protective Custody unit. On November 6, 1990, Defendant Armitage asked Plaintiff to sign a second waiver similar to the first so that he could be released to the general population. Plaintiff signed the form, but was then told by Defendant Armitage approximately one hour later that he would not be released to the general population until he signed a consent to protective custody. Plaintiff refused to sign the consent and was thereafter taken back to administrative segregation. On November 8, 1990, Plaintiff contends that Defendants Senkowski, Costello, and McCormick came to his cell and told him that he would remain in administrative segregation until he consented to protective custody. Plaintiff claims that he eventually signed the consent form because he feared spending the remainder of his sentence in administrative segregation.
On November 9, 1990, Plaintiff was admitted into Clinton's Protective Custody unit. The reason given for Plaintiff's placement was that Plaintiff's "records indicate [he was] stabbed by an unknown inmate at another New York Correctional Facility. It is not known if that inmate is at this facility. For your own safety it is recommended you be placed on Protective custody status." Defs.' Mem. Summ. J. Ex. U. Plaintiff's status in Protective Custody was reviewed periodically and it was determined that his continued placement therein was warranted because the circumstances justifying his initial placement had not changed. Giano remained in Protective Custody until December 13, 1990. Between administrative segregation and protective custody, Plaintiff spent one-hundred and twenty-five (125) days in SHU.
Giano alleges that his "due process right to a fair hearing before he was admitted to segregation was violated in that the hearing was nothing more than a pretext." Pl.'s Pre-trial Mem. at 2, Docket No. 69. He further contends that his "due process right to meaningful review of his continued confinement in segregation was violated in that the reviews were not done in a meaningful time and in a meaningful manner." Id. Defendants seek summary judgment on the following six (6) grounds: (1) Giano has failed to show that his period of confinement imposed an atypical and significant hardship; (2) the procedures Defendants followed afforded Giano all the process he was due; (3) Defendants have qualified immunity; (4) the evidence was sufficient to sustain the decision to place and maintain Giano in segregated confinement; (5) Giano is precluded from bringing this action because, if he is successful, such a holding would undermine the validity of the underlying conviction; and (6) a Section 1983 action cannot be maintained against Defendant Coughlin because he was not personally involved in the actions or decisions giving rise to this lawsuit.
The Court previously limited its discussion to Defendants' first defense, finding it dispositive. As the Second Circuit has found that Giano possessed a liberty interest, the Court now discusses Defendants remaining defenses.
II. DISCUSSION A. Summary Judgment Standard of Review
The standard for summary judgment is well-established. Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A material fact is genuinely disputed only if, based on that fact, a reasonable jury could find in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). On a motion for summary judgment, all evidence must be viewed and all inferences must be drawn in a light most favorable to the nonmoving party. See City of Yonkers v. Otis Elevator Co., 844 F.2d 42, 45 (2d Cir. 1988).The party seeking summary judgment bears the initial burden of "informing the district court of the basis for its motion" and identifying the matter "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Upon the movant's satisfying that burden, the onus then shifts to the non-moving party to "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 250. The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), but "must set forth specific facts showing that there is a genuine issue of fact for trial." First Nat'l Bank of Az. v. Cities Serv. Co., 391 U.S. 253, 288 (1968).
B. Due Process
The Due Process Clause of the Fourteenth Amendment provides that no "State [shall] deprive any person of life, liberty, or property, without due process of law[.]" U.S. Const. amend. XIV, § 1. Though countervailing considerations of security, discipline, and order alter the jurisprudence somewhat in the context of prisoners' rights, see, e.g., Wolff v. McDonnell, 418 U.S. 539, 555 (1974), "a prisoner is not wholly stripped of constitutional protections when he is imprisoned for crime." Id. Accordingly, to present a due process claim, a plaintiff must establish (1) that he possessed a liberty interest and (2) that the defendant(s) deprived him of that interest as a result of insufficient process. See Bedoya v. Coughlin, 91 F.3d 349, 351-52 (2d Cir. 1996).
1. Liberty Interest
In determining whether a liberty interest exists, the Court of Appeals held that Giano's periods of confinement at Clinton and Attica must be considered in the aggregate. See Giano v. Selsky, 238 F.3d 223, 226 (2d Cir. 2001) (stating that separate SHU sentences "`should be aggregated for purposes of the Sandin inquiry' when they constitute a sustained period of confinement"). The Second Circuit determined that Giano's segregation at Clinton was simply a continuance of his segregation at Attica. The two periods of confinement were based on the same administrative rationale and the conditions of Giano's confinement were essentially the same at both facilities. As the Second Circuit reasoned, "under these circumstances, Giano's two sentences of administrative segregation must be considered cumulatively for purposes of the Sandin analysis." Giano, 238 F.3d at 226. When viewed in the aggregate, the Second Circuit held that the length of time Giano was held in administrative segregation created a liberty interest implicating due process concerns. Id. The Court must now address the second prong of the due process analysis to determine whether the process afforded Giano with respect to his segregation at Clinton satisfies the minimum requirements of the Due Process Clause.
In 1989, Giano filed a separate § 1983 action in the Western District of New York, challenging his administrative segregation at Attica. In that action, Giano was found to have suffered an atypical and significant hardship and was awarded $19,400 in damages. See Giano v. Kelly, No. 89-CV-727(C), 2000 WL 876855 (W.D.N.Y. May 16, 2000).
2. Sufficiency of Process and Deprivation
There are two issues of due process before the Court regarding Giano's administrative segregation at Clinton. First, whether Giano received the process due during the initial segregation hearing conducted on August 17, 1990; and second, whether Giano received the process due during the subsequent status reviews of the administrative segregation decision. If Giano establishes a due process violation on either of these claims he must then show that he would have been released from administrative segregation had there been a meaningful review at either the initial hearing or at the periodic reviews. See Patterson v. Coughlin, 905 F.2d 564, 568 (2d Cir. 1990) (citing Carey v. Piphus, 435 U.S. 247, 266 (1978).
As to the initial administrative segregation hearing, Giano claims (1) that "no evidence [was] presented that plaintiff represented a continuing and imminent security threat" and (2) "the hearing officer [relied] upon information which was not made known to plaintiff 24 hours before the commencement of the hearing." Complaint at p. 8, ¶ 12.
Giano also claims that his due process rights were violated because prison officials provided inadequate periodic review of his administrative segregation status. Specifically, Giano argues that his due process rights were violated because: (1) he "had never been told exactly how he should change his behavior in order to satisfy defendants that his presence into general population does not pose a threat to his own safety or the safety and security of others or the facility," Complaint at p. 10, ¶ 24; and (2) that he was not "advised of the timing and results of the periodic review, the identification of the reviewers, or informed of the reasons for their [prisoners in administrative segregation] retention on administrative segregation status or the type of specific behavior that supports their continued confinement and segregation" (Complaint at p. 10, ¶ 25); and (3) the periodic reviews were "done in a cursory, perfunctory manner without any serious consideration of his actual recent behavior of the possibility that he could successfully program in the general population at Clinton or another facility. (Complaint at p. 10, ¶ 26).
a. Initial Administrative Segregation Hearing at Clinton
In connection with Giano's initial transfer to administrative segregation at Clinton, "the Due Process Clause requires only an informal nonadversary review of evidence . . . in order to confine an inmate feared to be a threat to institutional security to administrative segregation." Hewitt v. Helms, 459 U.S. 460, 474 (1983). "Officials must conduct `an informal, nonadversary evidentiary review' of the information in support of the prisoner's administrative confinement, and the `proceeding must occur within a reasonable time following an inmate's transfer.'" Soto v. Walker, 44 F.3d 169, 171 (2d Cir. 1995) (quoting Hewitt, 459 U.S. at 476 n. 8). The inmate confined for administrative reasons is entitled to only minimal process — "some notice of the charges against him and an opportunity to present his view to the prison official charged with deciding whether to transfer him to administrative segregation." Gomez v. Coughlin, 685 F. Supp. 1291, 1297 (S.D.N.Y. 1988) (quoting Hewitt, 459 U.S. at 476).
The facts presented by Giano in his complaint indicate that he received all process that was due to him regarding the initial segregation hearing. Plaintiff was provided with a copy of the administrative segregation recommendation on August 13, 1990, thus satisfying the notice requirement. (Exhibit N).
Giano was also given an opportunity to present his views regarding his transfer to administrative segregation. An administrative segregation hearing was also conducted. The hearing commenced on August 17, 1990, with defendant Wood serving as hearing officer. At the hearing, the segregation recommendation was read to Giano (Exhibit A, p. 3) and a description of his rights given. (Exhibit A, p. 1). Giano was also given the opportunity to call witnesses and present evidence in opposition to Armitage's recommendation that Giano remain in administrative segregation. After the hearing, defendant Wood concluded that Giano should remain in administrative segregation because he presented a risk to the safety and security of the facility. The decision was based largely on Sergeant Armitage's written report and testimony from Giano. Giano was also informed that his administrative segregation status would be reviewed every seven days for the first six weeks and then every thirty days thereafter. Giano appealed the determination to defendant Selsky, the Commissioner's designee, who affirmed the hearing officer's determination. (Exhibit Q).
Giano claims that he did not represent a security threat, however, substantial evidence exists for prison officials to conclude otherwise. The Supreme Court has noted in Rhodes v. Chapman, 452 U.S. 337, 349 n. 14, (1981), that "a prison's internal security is peculiarly a matter normally left to the discretion of prison administrators." In this case, defendants argue that Giano posed a threat due to his past escape attempts, from Sing Sing Correctional Facility, and from the Nassau County Court where his guards were seriously injured, and his familiarity with Clinton Correctional Facility. This is clearly enough evidence to conclude that Giano is a security risk. Giano's second due process claim as to the initial hearing is that "the hearing officer [relied] upon information which was not made known to plaintiff 24 hours before the commencement of the hearing." (Complaint at p. 8, ¶ 12). Other than this claim, Giano offers the Court no further facts or allegations to substantiate this claim. Giano does not dispute that he received a copy of the administrative segregation recommendation four days before the commencement of the hearing. Giano offers only a bald conclusory statement which is not enough to sustain his claim. Giano's due process claims surrounding the initial administrative segregation hearing at Clinton, are denied in their entirety.
b. Periodic Review of Administrative Segregation Status
In addition to the initial administrative segregation hearing, the regulations also provide that:
Inmates assigned to administrative segregation 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.
7 N.Y. Comp. Codes R. Regs. tit. 7 § 301.4(d); see also Hewitt, 459 U.S. at 477 n. 9 (1983) (holding that "administrative segregation may not be used as a pretext for indefinite confinement" and that "prison officials must engage in some form of periodic review of the confinement of such inmates"). The periodic review can be informal and non-adversarial. These 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." Giano v. Kelly, 2000 WL 876855 *17 (W.D.N.Y. 2000). However, if new relevant evidence becomes available following initial review of the inmate's administrative segregation, the decision-maker is obligated to consider that evidence during the periodic reviews. The inmate is entitled to notice of the reason for his confinement and an opportunity to respond to that reason. Hewitt, 459 U.S. at 477. If the reasons for his confinement do not change, however, the inmate need not be informed each time his confinement is reviewed. If the reasons for administrative segregation do change, the inmate should be informed of the new reasons and given an opportunity to respond.
Giano claims that the periodic reviews were nothing more than a pro forma exercise, in which no meaningful review actually took place. The fact that Giano was held in administrative segregation at Clinton for only 92 days contravenes this assertion. At the initial hearing, it was determined that Giano should be placed in administrative segregation based, in part, on his prior escape attempts and his familiarity with Clinton. Given these facts, it is reasonable for the prison officials to initially place Giano in administrative segregation. For all practical purposes, when Giano arrived at Clinton in August 1990, he was a new inmate with whom the staff at Clinton were unfamiliar. Being new to Clinton, the officials acted properly in placing Giano in administrative segregation in order to monitor and evaluate his behavior. Once placed in administrative segregation, Giano's status was periodically reviewed in accordance with the Department of Corrections regulations. The fact that Giano was released from administrative segregation after only 92 days lends credence to the fact that meaningful review took place. Just as it would be irresponsible for the Clinton officials to perfunctorily continue Giano's administrative segregating status, it would be equally irresponsible to release an inmate from administrative segregating without meaningful review of the individual.
Giano's remaining argument incorrectly concludes that since his due process rights were violated at Attica, then they must be violated at Clinton. Giano bases this conclusion on the Second Circuit's finding that the administrative segregation at Clinton was merely a continuation of his administrative segregation status at Attica. This finding by the Second Circuit was in regards to whether a liberty interest was at stake, not whether he was afforded sufficient process. The process afforded Giano at Attica is not relevant to the determination by the Court that Giano was afforded sufficient process at the periodic review of his administrative segregation status at Clinton. The favorable decision Giano received for his Attica confinement does not in any way entitle him to collateral estoppel with respect to the due process issue at Clinton. Collateral estoppel, which precludes relitigating issues that were actually litigated and decided in a prior action with the defendant, is not applicable to the inquiry into the sufficiency of process afforded Giano at Clinton. Giano's due process claims surrounding the periodic review of his administrative segregation status at Clinton are denied in their entirety.
CONCLUSION
For the reasons stated above, it is hereby:
ORDERED, that Defendants' motion for summary judgement is GRANTED and Plaintiff's cross-motion for summary judgment is DENIED; and it is further
ORDERED, that the Clerk of the Court shall serve copies of this Order by regular mail upon the parties to this action.
IT IS SO ORDERED.