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Disciplinary Segregation Can Create Liberty Interest
In two separate rulings, the court of appeals for the second circuit held that in Sandin v. Connor, 115 S.Ct. 2293 (1993) [PLN, Aug. 1995] the supreme court did not create a blanket rule that disciplinary segregation alone, without the loss of good time, could never implicate a liberty interest. Vincent Miller, a New York state prisoner, was infracted for fighting and found guilty at a disciplinary hearing. The hearing officer refused to allow Miller to review the testimony of informants who allegedly witnessed the attack.
Miller was sentenced to 180 days in segregation and the loss of six months good time credits. The sanction was affirmed on administrative appeal and Miller filed an Article 78 petition in state court challenging the infraction. During the state court proceedings, Donald Selsky, the New York prison official responsible for administrative appeals who had previously denied Miller's appeal, reversed his prior decision and ordered the record of the infraction, and all sanctions, expunged because the tape of confidential witnesses was "unavailable for judicial review" and the hearing record was incomplete. Miller spent 125 days in segregation before the infraction was vacated.
Miller filed suit in federal court pursuant to 42 U.S.C. § 1983 seeking damages, claiming his right to due process was violated when he was denied access to the alleged confidential testimony at the disciplinary hearing. The district court granted the defendants summary judgment, holding that under Sandin the imposition of disciplinary segregation did not, as a matter of law, create an "atypical and significant hardship" compared to "the ordinary incidents of prison life," thus no liberty interest was implicated. Because the good time credits were restored, the court held that their temporary deprivation did not deprive Miller of liberty.
The court of appeals vacated and remanded. The court held that Sandin "did not intimate that disciplinary confinement could never, as a matter of law, impose such a hardship" by causing an "atypical and significant deprivation." The court noted "we have implicitly reached this conclusion in other cases since the supreme court decided Sandin....
"These earlier post-Sandin decisions implied what we now state explicitly: Sandin did not create a per se blanket rule that disciplinary confinement may never implicate a liberty interest. Courts of appeals in other circuits have apparently come to the same conclusion, recognizing that district courts must examine the circumstances of a confinement to determine whether that confinement affected a liberty interest. See, e.g., Kennedy v. Blankenship, 100 F.3d 640, 642-43 (8th Cir. 1996); Keenan v. Hall, 83 F.3d 1083, 1089 (9th Cir. 1996); Williams v. Fountain, 77 F.3d 372, 374 n.3 (11th Cir. 1996) ... Whitford v. Bogliano, 63 F.3d 527, 533 (7th Cir. 1995)."
The court was careful to state that this ruling did not mean the district court couldn't grant the defendants summary judgment on remand. "If the district court reaffirms the grant of the motion on the ground that Miller's confinement did not impose an 'atypical and significant hardship ... in relation to the ordinary incidents of prison life,' the ruling should identify specific facts that support this conclusion." Sandin was decided after the parties had briefed the summary judgment motion in the lower court. The appeals court held that on remand the parties should submit evidence and argument about the conditions of Miller's segregated confinement as well as other legal arguments. See: Miller v. Selsky, 111 F.3d 7 (2nd Cir. 1997).
In a second ruling the second circuit vacated and remanded the dismissal of a New York prisoner's suit where the district court held that under Sandin, New York prisoners have no liberty interest in avoiding disciplinary segregation, regardless of the duration.
This case involves James Brooks, who spent 180 days in segregation before a state court ruled he was denied due process in a disciplinary ruling and ordered the expungement of the infraction and restoration of his lost good time. Brooks then filed suit for damages in federal court.
In dismissing Brook's claim the district court held disciplinary confinement could not impose an atypical hardship under Sandin because New York prison rules did not distinguish between disciplinary and administrative confinement. The court made no findings of fact as to the actual conditions of confinement in disciplinary segregation.
The appeals court held "After Sandin, in order to determine whether a prisoner has a liberty interest in avoiding disciplinary confinement, a court must examine the specific circumstances of the punishment .... The mere fact that prison regulations allow for lengthy administrative confinement in some situations does not obviate this central factual inquiry.
'First, as Judge Elfvin acknowledged, we have never held that New York prisoners have no liberty interest in avoiding long term administrative confinement. Second, the fact that administrative or protective custody is subject to periodic review, while disciplinary confinement is not, may be significant in determining whether lengthy disciplinary confinement constitutes an 'atypical and significant hardship.' Furthermore, the district court's approach depended on the observation that New York's prison regulations make little or no distinction between disciplinary and non disciplinary segregated confinement. While it may be true that the regulations do not distinguish between the conditions of administrative and punitive confinement, it does not necessarily follow that the actual conditions are similar. Finally, the mere fact that New York's prison regulations permit extended administrative segregation does not tell how frequently or for what duration such segregation is imposed." The district court was instructed to make these findings on remand. See: Brooks v. Difasi, 112 F.3d 46 (2nd Cir. 1997).
Miller was sentenced to 180 days in segregation and the loss of six months good time credits. The sanction was affirmed on administrative appeal and Miller filed an Article 78 petition in state court challenging the infraction. During the state court proceedings, Donald Selsky, the New York prison official responsible for administrative appeals who had previously denied Miller's appeal, reversed his prior decision and ordered the record of the infraction, and all sanctions, expunged because the tape of confidential witnesses was "unavailable for judicial review" and the hearing record was incomplete. Miller spent 125 days in segregation before the infraction was vacated.
Miller filed suit in federal court pursuant to 42 U.S.C. § 1983 seeking damages, claiming his right to due process was violated when he was denied access to the alleged confidential testimony at the disciplinary hearing. The district court granted the defendants summary judgment, holding that under Sandin the imposition of disciplinary segregation did not, as a matter of law, create an "atypical and significant hardship" compared to "the ordinary incidents of prison life," thus no liberty interest was implicated. Because the good time credits were restored, the court held that their temporary deprivation did not deprive Miller of liberty.
The court of appeals vacated and remanded. The court held that Sandin "did not intimate that disciplinary confinement could never, as a matter of law, impose such a hardship" by causing an "atypical and significant deprivation." The court noted "we have implicitly reached this conclusion in other cases since the supreme court decided Sandin....
"These earlier post-Sandin decisions implied what we now state explicitly: Sandin did not create a per se blanket rule that disciplinary confinement may never implicate a liberty interest. Courts of appeals in other circuits have apparently come to the same conclusion, recognizing that district courts must examine the circumstances of a confinement to determine whether that confinement affected a liberty interest. See, e.g., Kennedy v. Blankenship, 100 F.3d 640, 642-43 (8th Cir. 1996); Keenan v. Hall, 83 F.3d 1083, 1089 (9th Cir. 1996); Williams v. Fountain, 77 F.3d 372, 374 n.3 (11th Cir. 1996) ... Whitford v. Bogliano, 63 F.3d 527, 533 (7th Cir. 1995)."
The court was careful to state that this ruling did not mean the district court couldn't grant the defendants summary judgment on remand. "If the district court reaffirms the grant of the motion on the ground that Miller's confinement did not impose an 'atypical and significant hardship ... in relation to the ordinary incidents of prison life,' the ruling should identify specific facts that support this conclusion." Sandin was decided after the parties had briefed the summary judgment motion in the lower court. The appeals court held that on remand the parties should submit evidence and argument about the conditions of Miller's segregated confinement as well as other legal arguments. See: Miller v. Selsky, 111 F.3d 7 (2nd Cir. 1997).
In a second ruling the second circuit vacated and remanded the dismissal of a New York prisoner's suit where the district court held that under Sandin, New York prisoners have no liberty interest in avoiding disciplinary segregation, regardless of the duration.
This case involves James Brooks, who spent 180 days in segregation before a state court ruled he was denied due process in a disciplinary ruling and ordered the expungement of the infraction and restoration of his lost good time. Brooks then filed suit for damages in federal court.
In dismissing Brook's claim the district court held disciplinary confinement could not impose an atypical hardship under Sandin because New York prison rules did not distinguish between disciplinary and administrative confinement. The court made no findings of fact as to the actual conditions of confinement in disciplinary segregation.
The appeals court held "After Sandin, in order to determine whether a prisoner has a liberty interest in avoiding disciplinary confinement, a court must examine the specific circumstances of the punishment .... The mere fact that prison regulations allow for lengthy administrative confinement in some situations does not obviate this central factual inquiry.
'First, as Judge Elfvin acknowledged, we have never held that New York prisoners have no liberty interest in avoiding long term administrative confinement. Second, the fact that administrative or protective custody is subject to periodic review, while disciplinary confinement is not, may be significant in determining whether lengthy disciplinary confinement constitutes an 'atypical and significant hardship.' Furthermore, the district court's approach depended on the observation that New York's prison regulations make little or no distinction between disciplinary and non disciplinary segregated confinement. While it may be true that the regulations do not distinguish between the conditions of administrative and punitive confinement, it does not necessarily follow that the actual conditions are similar. Finally, the mere fact that New York's prison regulations permit extended administrative segregation does not tell how frequently or for what duration such segregation is imposed." The district court was instructed to make these findings on remand. See: Brooks v. Difasi, 112 F.3d 46 (2nd Cir. 1997).
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Related legal cases
Brooks v. Difasi
| Year | 1997 |
|---|---|
| Cite | 112 F.3d 46 (2nd Cir. 1997) |
| Level | Court of Appeals |
--------------------------------------------------------------------------------
Brooks v. Difasi, 112 F.3d 46 (2d Cir. 04/09/1997)
[Editor's note: footnotes (if any) trail the opinion]
[1] UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
[2] No. 772
[3] August Term, 1996
[4] Argued: January 15, 1997
[5] Decided: April 9, 1997
[6] Docket No. 96-2559
[7] JAMES BROOKS,
[8] Plaintiff-Appellant,
v.
[9] MICHAEL A. DIFASI, Corrections Officer, employee of the N.Y.S. Department of Correctional Services, separately and in his personal capacities, et al.,
[10] Defendants,
[11] CHERYL LEE, employee of the N.Y.S Department of Correctional Services, separately and in her personal capacities, DONALD SELSKY, employee of the N.Y.S. Department of Correctional Services, separately and in his official capacities,
[12] Defendants-Appellees.
[13] Before: Van Graafeiland, Leval, and Cabranes, Circuit Judges.
[14] Appeal from a grant of summary judgment by the United States District Court for the Western District of New York (Elfvin, J.), dismissing prisoner's civil rights claim. The district court ruled that 180 days of disciplinary confinement could not trigger a due process interest as an atypical and significant hardship where prison regulations permitted extended administrative segregation.
[15] Vacated and remanded.
[16] LEVAL, Circuit Judge:
[17] James Brooks, a prisoner at the Elmira Correctional Facility, appeals from a grant of summary judgment by the United States District Court for the Western District of New York (John T. Elfvin, Judge), dismissing his civil rights action under 42 U.S.C. Section(s) 1983. Brooks alleges that defendants Cheryl Lee and Donald Selsky, who are prison officials, deprived him of procedural due process in disciplinary proceedings. Lee presided over a hearing at which Brooks was sentenced to 365 days of segregated cell confinement with loss of privileges. Brooks appealed that sentence to Selsky, director of the Department of Corrections' Special Housing/Inmate Disciplinary Program, who affirmed the imposition of discipline, although reducing the period of confinement to 180 days. Brooks claims that he was denied his due process right to call witnesses at the disciplinary hearing.
[18] The district court ruled, without considering the duration or conditions of the punishment imposed, that Brooks had no liberty interest in being free of disciplinary confinement because it did not impose a hardship that is "atypical and significant" under Sandin v. Conner, ___ U.S. ___, 115 S. Ct. 2293 (1995). Because we disagree with the district court's interpretation of Sandin, we reverse and remand for further proceedings.
[19] Background
[20] In October 1990, Brooks had a physical altercation with four prison guards. Afterwards, all four guards filed written reports, and two filed additional misbehavior reports charging Brooks with refusal to obey a direct order, violation of frisk procedures, and possession of a weapon (a broken razor). Brooks claims that the guards attacked him without provocation and then filed false complaints to cover up their own misbehavior.
[21] Brooks was charged with a disciplinary infraction, and defendant Lee, a corrections officer at the Elmira facility, presided over the disciplinary hearing. Brooks asked to call all four guards and two inmates as witnesses. After taking the testimony of one inmate and one guard, Lee told Brooks that she was denying his request for additional witnesses because "their testimony would be redundant." Lee found Brooks guilty on all charges and imposed a penalty of one year in keeplock with the loss of privileges and good time credit. Brooks appealed to Selsky in his capacity as Director of the Special Housing/Inmate Disciplinary Program. In his appeal Brooks claimed he was denied his right to call witnesses. Selsky responded by affirming imposition of the discipline, but reduced Brooks's time in keeplock to 180 days.
[22] Brooks then filed an Article 78 petition in New York State Supreme Court, Chemung County. The state court, in an opinion dated November 12, 1991, concluded that Brooks was denied "his constitutional and regulatory rights to call witnesses on his behalf" and ordered his good time credits restored and his disciplinary record expunged. The court thus annulled the disciplinary finding. By this time Brooks had completed the service of the 180-day confinement.
[23] In 1993 Brooks filed this lawsuit pro se, claiming that his constitutional rights had been violated by the guards' use of excessive force, by Lee's refusal to allow him to call witnesses at his hearing, and by Selsky's affirmance of the imposition of discipline. Counsel was appointed for Brooks and filed an amended complaint. In January 1996, the district judge granted Lee's and Selsky's motion for summary judgment and dismissed the case against them. In May 1996, the court heard a jury trial of Brooks's claims against the guards. The jury found for Brooks against two of the guards and awarded token damages of one dollar against each. Judgment was entered on these awards. In this appeal, Brooks challenges only the summary dismissal of his claims against Lee and Selsky.
[24] In granting summary judgment, the district court did not decide whether the procedure at Brooks's hearing would satisfy constitutional due process. Instead, the court ruled that Brooks's discipline did not implicate any due process right. The court held that, under Sandin, prisoners in New York have no liberty interest in avoiding disciplinary confinement, regardless the duration. The judge reasoned that because New York regulations permit extended administrative, or protective, confinement -- subject to periodic review -- even lengthy disciplinary confinement could not constitute an "atypical and significant hardship." Id. Accordingly, Judge Elfvin dismissed Brooks's claim.
[25] Discussion
[26] The district court correctly found that, after Sandin, a prisoner has no constitutional right to any procedural safeguards -- regardless what state statutes or regulations provide -- unless the deprivation complained of imposed an "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." 115 S. Ct. at 2300. Brooks argues, however, that Judge Elfvin failed to determine factual issues necessary for an assessment of whether his disciplinary confinement constituted such a hardship under Sandin. We agree.
[27] In reaching his decision, Judge Elfvin did not have the benefit of our recent opinion in Miller v. Selsky, No. 95-2849, slip op. 2387 (2d Cir. April 2, 1997). In that case, we held that "Sandin did not create a per se blanket rule that disciplinary confinement may never implicate a liberty interest." Id. at 2393 (and citing cases from other circuits that have reached the same conclusion). Instead, the Court in Sandin carefully considered the specific conditions of the inmate's confinement and found that the prisoner-plaintiff's 30 days in segregated confinement "did not work a major disruption in his environment" and thus was not the sort of deprivation capable of triggering due process protection. 115 S. Ct at 2301. In coming to that conclusion, the Court found that the conditions of the challenged confinement "with insignificant exceptions, mirrored those conditions imposed upon inmates in administrative segregation and protective custody" so that "the confinement did not exceed similar, but totally discretionary confinement in either duration or degree of restriction." Id. (emphasis added).Concluding that the "durational aspect" of Brooks's confinement was of "little import," Judge Elfvin did not consider the length of the confinement in determining whether it imposed an atypical and significant hardship. Nor did the judge make any findings about the restrictiveness of Brooks's disciplinary keeplock or about the prevailing conditions in administrative confinement or in the prison at large. Instead, the district judge concluded that disciplinary confinement could not impose an atypical hardship under Sandin because New York prison regulations "make little distinction between disciplinary and non-disciplinary confinement" and allow inmates to be segregated for extended periods in administrative or protective custody, subject to periodic review.
[28] A comparison between administrative and disciplinary confinement was part of the Court's analysis in Sandin. The Court did not suggest, however, that regulations permitting lengthy administrative confinement compel the conclusion that extended disciplinary confinement is necessarily compatible with due process. To the contrary, the decision in Sandin entailed careful examination of the actual conditions of the challenged punishment compared with ordinary prison conditions. Miller at 2392, citing 115 S. Ct. 2301-02.
[29] After Sandin, in order to determine whether a prisoner has a liberty interest in avoiding disciplinary confinement, a court must examine the specific circumstances of the punishment. Miller at 2392-93. Cf., Frazier v. Coughlin, 81 F.3d 313, 317 (2d Cir. 1996) (per curiam), (affirming dismissal of inmate's action because the district court's "extensive fact-finding" supported its decision and the inmate had "not shown that the conditions of his confinement in the SHU were dramatically different from the `basic conditions of [his] indeterminate sentence.'"(quoting Sandin, ___ U.S. ___, 115 S. Ct. at 2301)). See also Samuels v. Mockry, 77 F.3d 34 (2d Cir. 1996), and Branham v. Meachum, 77 F.3d 626 (2d Cir. 1996) (remanding for district courts to consider whether placement in segregated housing deprived inmates of a liberty interest). The mere fact that prison regulations allow for lengthy administrative confinement in some situations does not obviate this central factual inquiry. First, as Judge Elfvin acknowledged, we have never held that New York prisoners have no liberty interest in avoiding long-term administrative confinement. Second, the fact that administrative or protective custody is subject to periodic review, while disciplinary confinement is not, may be significant in determining whether lengthy disciplinary confinement constitutes an "atypical and significant hardship." Furthermore, the district court's approach depended on the observation that New York's prison regulations make little or no distinction between disciplinary and non-disciplinary segregated confinement. While it may be true that the regulations do not distinguish between the conditions of administrative and punitive confinement, it does not necessarily follow that the actual conditions are similar. Finally, the mere fact that New York's prison regulations permit extended administrative segregation does not tell how frequently or for what durations such segregation is imposed.
[30] The district court must reconsider the defendants' motion for summary judgment. Because Sandin was decided after the parties briefed the motion, neither side submitted evidence or made arguments on the issue of whether Brooks's confinement was an "atypical and significant" deprivation. Nor did the state have the opportunity to make the argument it raises on appeal that New York statutes and prison regulations do not create a liberty interest in avoiding segregated confinement. Unless the court decides the motion on a different basis, the state should be offered the opportunity to expand the record on the pertinent issues, and Brooks to reply. If, after reviewing the record, the district court again decides that Brooks's confinement did not impose an "atypical and significant hardship," the court should identify with specificity the facts upon which its conclusion is based. The district court is also free to decide the motion on the basis of the other issues raised in defendants' motion, including whether defendants are entitled to qualified immunity and whether Brooks received due process at his hearing.
[31] Conclusion
[32] The summary judgment is vacated, and the case is remanded for further proceedings consistent with this opinion.
[Editor's note: Illustrations from the original opinion, if any, are available in the print version]
19970409
Brooks v. Difasi, 112 F.3d 46 (2d Cir. 04/09/1997)
[Editor's note: footnotes (if any) trail the opinion]
[1] UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
[2] No. 772
[3] August Term, 1996
[4] Argued: January 15, 1997
[5] Decided: April 9, 1997
[6] Docket No. 96-2559
[7] JAMES BROOKS,
[8] Plaintiff-Appellant,
v.
[9] MICHAEL A. DIFASI, Corrections Officer, employee of the N.Y.S. Department of Correctional Services, separately and in his personal capacities, et al.,
[10] Defendants,
[11] CHERYL LEE, employee of the N.Y.S Department of Correctional Services, separately and in her personal capacities, DONALD SELSKY, employee of the N.Y.S. Department of Correctional Services, separately and in his official capacities,
[12] Defendants-Appellees.
[13] Before: Van Graafeiland, Leval, and Cabranes, Circuit Judges.
[14] Appeal from a grant of summary judgment by the United States District Court for the Western District of New York (Elfvin, J.), dismissing prisoner's civil rights claim. The district court ruled that 180 days of disciplinary confinement could not trigger a due process interest as an atypical and significant hardship where prison regulations permitted extended administrative segregation.
[15] Vacated and remanded.
[16] LEVAL, Circuit Judge:
[17] James Brooks, a prisoner at the Elmira Correctional Facility, appeals from a grant of summary judgment by the United States District Court for the Western District of New York (John T. Elfvin, Judge), dismissing his civil rights action under 42 U.S.C. Section(s) 1983. Brooks alleges that defendants Cheryl Lee and Donald Selsky, who are prison officials, deprived him of procedural due process in disciplinary proceedings. Lee presided over a hearing at which Brooks was sentenced to 365 days of segregated cell confinement with loss of privileges. Brooks appealed that sentence to Selsky, director of the Department of Corrections' Special Housing/Inmate Disciplinary Program, who affirmed the imposition of discipline, although reducing the period of confinement to 180 days. Brooks claims that he was denied his due process right to call witnesses at the disciplinary hearing.
[18] The district court ruled, without considering the duration or conditions of the punishment imposed, that Brooks had no liberty interest in being free of disciplinary confinement because it did not impose a hardship that is "atypical and significant" under Sandin v. Conner, ___ U.S. ___, 115 S. Ct. 2293 (1995). Because we disagree with the district court's interpretation of Sandin, we reverse and remand for further proceedings.
[19] Background
[20] In October 1990, Brooks had a physical altercation with four prison guards. Afterwards, all four guards filed written reports, and two filed additional misbehavior reports charging Brooks with refusal to obey a direct order, violation of frisk procedures, and possession of a weapon (a broken razor). Brooks claims that the guards attacked him without provocation and then filed false complaints to cover up their own misbehavior.
[21] Brooks was charged with a disciplinary infraction, and defendant Lee, a corrections officer at the Elmira facility, presided over the disciplinary hearing. Brooks asked to call all four guards and two inmates as witnesses. After taking the testimony of one inmate and one guard, Lee told Brooks that she was denying his request for additional witnesses because "their testimony would be redundant." Lee found Brooks guilty on all charges and imposed a penalty of one year in keeplock with the loss of privileges and good time credit. Brooks appealed to Selsky in his capacity as Director of the Special Housing/Inmate Disciplinary Program. In his appeal Brooks claimed he was denied his right to call witnesses. Selsky responded by affirming imposition of the discipline, but reduced Brooks's time in keeplock to 180 days.
[22] Brooks then filed an Article 78 petition in New York State Supreme Court, Chemung County. The state court, in an opinion dated November 12, 1991, concluded that Brooks was denied "his constitutional and regulatory rights to call witnesses on his behalf" and ordered his good time credits restored and his disciplinary record expunged. The court thus annulled the disciplinary finding. By this time Brooks had completed the service of the 180-day confinement.
[23] In 1993 Brooks filed this lawsuit pro se, claiming that his constitutional rights had been violated by the guards' use of excessive force, by Lee's refusal to allow him to call witnesses at his hearing, and by Selsky's affirmance of the imposition of discipline. Counsel was appointed for Brooks and filed an amended complaint. In January 1996, the district judge granted Lee's and Selsky's motion for summary judgment and dismissed the case against them. In May 1996, the court heard a jury trial of Brooks's claims against the guards. The jury found for Brooks against two of the guards and awarded token damages of one dollar against each. Judgment was entered on these awards. In this appeal, Brooks challenges only the summary dismissal of his claims against Lee and Selsky.
[24] In granting summary judgment, the district court did not decide whether the procedure at Brooks's hearing would satisfy constitutional due process. Instead, the court ruled that Brooks's discipline did not implicate any due process right. The court held that, under Sandin, prisoners in New York have no liberty interest in avoiding disciplinary confinement, regardless the duration. The judge reasoned that because New York regulations permit extended administrative, or protective, confinement -- subject to periodic review -- even lengthy disciplinary confinement could not constitute an "atypical and significant hardship." Id. Accordingly, Judge Elfvin dismissed Brooks's claim.
[25] Discussion
[26] The district court correctly found that, after Sandin, a prisoner has no constitutional right to any procedural safeguards -- regardless what state statutes or regulations provide -- unless the deprivation complained of imposed an "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." 115 S. Ct. at 2300. Brooks argues, however, that Judge Elfvin failed to determine factual issues necessary for an assessment of whether his disciplinary confinement constituted such a hardship under Sandin. We agree.
[27] In reaching his decision, Judge Elfvin did not have the benefit of our recent opinion in Miller v. Selsky, No. 95-2849, slip op. 2387 (2d Cir. April 2, 1997). In that case, we held that "Sandin did not create a per se blanket rule that disciplinary confinement may never implicate a liberty interest." Id. at 2393 (and citing cases from other circuits that have reached the same conclusion). Instead, the Court in Sandin carefully considered the specific conditions of the inmate's confinement and found that the prisoner-plaintiff's 30 days in segregated confinement "did not work a major disruption in his environment" and thus was not the sort of deprivation capable of triggering due process protection. 115 S. Ct at 2301. In coming to that conclusion, the Court found that the conditions of the challenged confinement "with insignificant exceptions, mirrored those conditions imposed upon inmates in administrative segregation and protective custody" so that "the confinement did not exceed similar, but totally discretionary confinement in either duration or degree of restriction." Id. (emphasis added).Concluding that the "durational aspect" of Brooks's confinement was of "little import," Judge Elfvin did not consider the length of the confinement in determining whether it imposed an atypical and significant hardship. Nor did the judge make any findings about the restrictiveness of Brooks's disciplinary keeplock or about the prevailing conditions in administrative confinement or in the prison at large. Instead, the district judge concluded that disciplinary confinement could not impose an atypical hardship under Sandin because New York prison regulations "make little distinction between disciplinary and non-disciplinary confinement" and allow inmates to be segregated for extended periods in administrative or protective custody, subject to periodic review.
[28] A comparison between administrative and disciplinary confinement was part of the Court's analysis in Sandin. The Court did not suggest, however, that regulations permitting lengthy administrative confinement compel the conclusion that extended disciplinary confinement is necessarily compatible with due process. To the contrary, the decision in Sandin entailed careful examination of the actual conditions of the challenged punishment compared with ordinary prison conditions. Miller at 2392, citing 115 S. Ct. 2301-02.
[29] After Sandin, in order to determine whether a prisoner has a liberty interest in avoiding disciplinary confinement, a court must examine the specific circumstances of the punishment. Miller at 2392-93. Cf., Frazier v. Coughlin, 81 F.3d 313, 317 (2d Cir. 1996) (per curiam), (affirming dismissal of inmate's action because the district court's "extensive fact-finding" supported its decision and the inmate had "not shown that the conditions of his confinement in the SHU were dramatically different from the `basic conditions of [his] indeterminate sentence.'"(quoting Sandin, ___ U.S. ___, 115 S. Ct. at 2301)). See also Samuels v. Mockry, 77 F.3d 34 (2d Cir. 1996), and Branham v. Meachum, 77 F.3d 626 (2d Cir. 1996) (remanding for district courts to consider whether placement in segregated housing deprived inmates of a liberty interest). The mere fact that prison regulations allow for lengthy administrative confinement in some situations does not obviate this central factual inquiry. First, as Judge Elfvin acknowledged, we have never held that New York prisoners have no liberty interest in avoiding long-term administrative confinement. Second, the fact that administrative or protective custody is subject to periodic review, while disciplinary confinement is not, may be significant in determining whether lengthy disciplinary confinement constitutes an "atypical and significant hardship." Furthermore, the district court's approach depended on the observation that New York's prison regulations make little or no distinction between disciplinary and non-disciplinary segregated confinement. While it may be true that the regulations do not distinguish between the conditions of administrative and punitive confinement, it does not necessarily follow that the actual conditions are similar. Finally, the mere fact that New York's prison regulations permit extended administrative segregation does not tell how frequently or for what durations such segregation is imposed.
[30] The district court must reconsider the defendants' motion for summary judgment. Because Sandin was decided after the parties briefed the motion, neither side submitted evidence or made arguments on the issue of whether Brooks's confinement was an "atypical and significant" deprivation. Nor did the state have the opportunity to make the argument it raises on appeal that New York statutes and prison regulations do not create a liberty interest in avoiding segregated confinement. Unless the court decides the motion on a different basis, the state should be offered the opportunity to expand the record on the pertinent issues, and Brooks to reply. If, after reviewing the record, the district court again decides that Brooks's confinement did not impose an "atypical and significant hardship," the court should identify with specificity the facts upon which its conclusion is based. The district court is also free to decide the motion on the basis of the other issues raised in defendants' motion, including whether defendants are entitled to qualified immunity and whether Brooks received due process at his hearing.
[31] Conclusion
[32] The summary judgment is vacated, and the case is remanded for further proceedings consistent with this opinion.
[Editor's note: Illustrations from the original opinion, if any, are available in the print version]
19970409
Miller v. Selsky
| Year | 1997 |
|---|---|
| Cite | 111 F.3d 7 (2nd Cir. 1997) |
| Level | Court of Appeals |
--------------------------------------------------------------------------------
Miller v. Selsky, 111 F.3d 7 (2d Cir. 04/02/1997)
[Editor's note: footnotes (if any) trail the opinion]
[1] UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
[2] No. 632
[3] August Term, 1996
[4] Argued: January 15, 1997
[5] Decided: April 2, 1997
[6] Docket No. 95-2849
[7] VINCENT MILLER,
[8] Plaintiff-Appellant,
v.
[9] DONALD SELSKY, Director of Special Housing, S. BRUSO, Educational Supervisor at Barehill Correctional Facility,
[10] Defendants-Appellees.
[11] Before: Van Graafeiland, Leval, and Cabranes, Circuit Judges.
[12] Appeal from a grant of summary judgment by the United States District Court for the Northern District of New York (Cholakis, J.), dismissing plaintiff's civil rights action. The district court ruled that segregation in disciplinary confinement does not implicate a protected liberty interest because it does not, as a matter of law, impose an atypical and significant hardship on convicted prisoners.
[13] Vacated and remanded.
[14] LEVAL, Circuit Judge:
[15] Plaintiff Vincent Miller, a prison inmate, appeals from a grant of summary judgment by the United States District Court for the Northern District of New York (Con. G. Cholakis, Judge), dismissing his civil rights action under 42 U.S.C. Section(s) 1983. Miller alleged that defendants, who are prison officials, deprived him of procedural due process in disciplinary proceedings that led to his confinement in a special housing unit (SHU) for 125 days. Citing Sandin v. Conner, ___ U.S. ___, 115 S. Ct. 2293 (1995), the district court ruled, as a matter of law, that disciplinary confinement in segregated housing does not involve a constitutionally protected liberty interest because it does not impose a hardship that is "atypical and significant" for convicted prisoners. As a result, the court found that Miller's segregation was not within the concerns of the Fourteenth Amendment, and he had no valid claim under the due process clause.
[16] Because the district court based its ruling on an erroneous interpretation of Sandin, we vacate the judgment and remand for further proceedings.
[17] Background
[18] On September 6, 1992, Miller, an inmate at the Bare Hill Correctional Facility, was charged with assault, fighting, and creating a disturbance. Sergeant Rocque, a corrections officer who is not a party to this action, filed a written report stating that he had found, "[t]hrough investigation and information received from confidential sources," that Miller had assaulted another inmate and inflicted physical injury on him.
[19] From September 10 to 14, 1992, defendant Corrections Officer S. Bruso held hearings on these charges. Stating that he was relying on Rocque's report, "confidential testimony," and "conflicting testimony" of witnesses called by Miller, Bruso found Miller guilty and imposed punishment of 180 days in the SHU and the loss of six months of good time credit. Bruso noted that "this severe penalty is warranted" because the victim was "severely beaten and could have sustained permanent injury." Bruso denied Miller's request to attend the testimony of the confidential witnesses or to review transcripts of that testimony. On a "witness interview" form given to Miller, Bruso explained that "I have taken confidential testimony, and by its very nature you cannot be allowed to receive it." Miller thereafter filed an administrative appeal with defendant Donald Selsky, the Director of the Special Housing/Inmate Disciplinary Program for the Department of Corrections, who affirmed Bruso's ruling on November 16, 1992. On November 29, 1992, Miller brought an Article 78 proceeding in New York Supreme Court, Franklin County, to challenge this decision. On January 8, 1993, Selsky administratively reversed his prior ruling and vacated the imposition of discipline on Miller. In internal prison correspondence, Selsky explained that he had reversed his previous decision after consulting with the State Attorney General's Office because the record of Bruso's hearing was incomplete and the "confidential tape" was "unavailable for judicial review." Although the charges were "expunged" from his record, Miller served 125 days in the SHU before the finding of misconduct was vacated.
[20] On February 3, 1994, Miller brought this action pro se *fn1 under 42 U.S.C. Section(s) 1983, alleging that defendants deprived him of procedural due process by excluding him from the confidential testimony and by preventing him from reviewing transcripts of that testimony. The complaint also alleged that Selsky violated New York law by initially affirming the imposition of discipline. Miller sought compensatory and punitive damages.
[21] On November 10, 1994, defendants moved for summary judgment arguing that (1) Selsky's eventual reversal of the initial finding "cured all procedural errors"; (2) Selsky was entitled to absolute immunity; (3) both defendants were entitled to qualified immunity; and (4) Miller could not recover compensatory or punitive damages because he had not alleged a constitutional injury.
[22] Magistrate Judge Daniel Scanlon Jr., to whom the motion was referred for recommendation and report, recommended that defendants' motion for summary judgment be granted. *fn2 The magistrate judge found that Miller had received due process during the disciplinary proceedings and that Selsky had qualified immunity from any potential liability for failing to ascertain promptly that the hearing record was incomplete and therefore subject to reversal.
[23] On review, the district court reached the same result, *fn3 but applied another rationale, drawn from the United States Supreme Court's intervening decision in Sandin. The district court interpreted Sandin to mean that the imposition of segregated confinement, as a matter of law, does not create a "hardship" that is "atypical and significant" compared with the "ordinary incidents of prison life," and accordingly does not involve an actionable deprivation of liberty. The court also held that as Miller's good time credits were restored before he became eligible for parole, their temporary loss did not deprive him of liberty.
[24] Discussion
[25] We agree with the district court that in Sandin the Supreme Court explicitly held that disciplinary confinement does not deprive an inmate of a liberty interest unless the confinement imposes an "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin, ___ U.S. at ___, 115 S.Ct. at 2300. But the Court did not intimate that disciplinary confinement could never, as a matter of law, impose such a hardship.
[26] To the contrary, the Court examined closely the circumstances of the inmate's confinement and compared them to the conditions facing the general inmate population. Noting the duration (30 days) and character of the confinement, and the fact it would not "inevitably affect the duration of his sentence," the Court found that the "regime to which he was subjected as a result of the misconduct hearing was within the range of confinement to be normally expected for one serving an indeterminate term of 30 years to life." ___ U.S. ___, id. at 2301-02.
[27] The language and analysis in Sandin make clear that the Court did not intend to suggest that discipline in segregated confinement could never present such an "atypical, significant deprivation." Id. at 2301. We have implicitly reached this conclusion in other cases since the Supreme Court decided Sandin. In Frazier v. Coughlin, 81 F.3d 313, 317 (2d Cir. 1996) (per curiam), we affirmed the dismissal of an inmate's action because the district court's "extensive fact-finding" supported its decision. In doing so, we noted that the inmate had "not shown that the conditions of his confinement in the SHU were dramatically different from the `basic conditions of [his] indeterminate sentence.'" Id. (quoting Sandin, ___ U.S. ___, 115 S. Ct. at 2301). In Samuels v. Mockry, 77 F.3d 34 (2d Cir. 1996), and Branham v. Meachum, 77 F.3d 626 (2d Cir. 1996), we remanded for district courts to consider whether inmates who had been confined to their cells had been deprived of a liberty interest.
[28] These earlier post-Sandin decisions implied what we now state explicitly: Sandin did not create a per se blanket rule that disciplinary confinement may never implicate a liberty interest. Courts of appeals in other circuits have apparently come to the same conclusion, recognizing that district courts must examine the circumstances of a confinement to determine whether that confinement affected a liberty interest. See, e.g., Kennedy v. Blankenship, 100 F.3d 640, 642-43 (8th Cir. 1996); Keenan v. Hall, 83 F.3d 1083, 1089 (9th Cir. 1996); Williams v. Fountain, 77 F.3d 372, 374 n.3 (11th Cir.), cert. denied, 117 S. Ct. 367 (1996); Whitford v. Boglino, 63 F.3d 527, 533 (7th Cir. 1995). But cf. McGuinness v. Dubois, 75 F.3d 794, 797 n.3 (1st Cir. 1996) (stating, in case involving a 30-day confinement, that the Sandin Court "concluded that solitary confinement did not present the type of atypical, significant deprivation in which a state might conceivably create a liberty interest.").
[29] We therefore remand for reconsideration of the defendants' motion for summary judgment. Our remand in no way suggests the motion should be denied. If the district court reaffirms the grant of the motion on the ground that Miller's confinement did not impose an "atypical and significant hardship . . . in relation to the ordinary incidents of prison life," the ruling should identify specific facts that support this conclusion.
[30] Because Sandin was decided after the parties briefed the summary judgment motion, neither side submitted evidence or arguments on the issue of whether Miller's confinement was an "atypical and significant" deprivation. Nor did the state have the opportunity to make the argument it raises on appeal -- that New York statutes and prison regulations do not create a liberty interest in avoiding segregated confinement. Unless the court decides the motion on a different basis, the state should be offered the opportunity to expand the record on the pertinent issues, and Miller to reply. The district court is free as well to rely on other grounds of the defendants' motion, such as whether defendants are entitled to qualified immunity, whether Miller received due process, *fn4 and whether New York has created a liberty interest in avoiding segregated confinement.
[31] Conclusion
[32] We vacate the judgment and remand for further proceedings.
***** BEGIN FOOTNOTE(S) HERE *****
[33] *fn1 Although Miller proceeded pro se in the district court, he has been represented by counsel on appeal.
[34] *fn2 Report and Recommendation dated May 8, 1995.
[35] *fn3 Memorandum Decision and Order dated November 22, 1995.
[36] *fn4 The defendants contend the district court ruled in their favor on the due process issue. Although there is language in the district court's opinion that may support this contention, the passage is unclear and includes a mistaken statement of law on the effect of administrative reversal of the disciplinary hearing. We are not confident the district court resolved the motion on this alternative ground.
***** END FOOTNOTE(S) HERE *****
[Editor's note: Illustrations from the original opinion, if any, are available in the print version]
19970402
Miller v. Selsky, 111 F.3d 7 (2d Cir. 04/02/1997)
[Editor's note: footnotes (if any) trail the opinion]
[1] UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
[2] No. 632
[3] August Term, 1996
[4] Argued: January 15, 1997
[5] Decided: April 2, 1997
[6] Docket No. 95-2849
[7] VINCENT MILLER,
[8] Plaintiff-Appellant,
v.
[9] DONALD SELSKY, Director of Special Housing, S. BRUSO, Educational Supervisor at Barehill Correctional Facility,
[10] Defendants-Appellees.
[11] Before: Van Graafeiland, Leval, and Cabranes, Circuit Judges.
[12] Appeal from a grant of summary judgment by the United States District Court for the Northern District of New York (Cholakis, J.), dismissing plaintiff's civil rights action. The district court ruled that segregation in disciplinary confinement does not implicate a protected liberty interest because it does not, as a matter of law, impose an atypical and significant hardship on convicted prisoners.
[13] Vacated and remanded.
[14] LEVAL, Circuit Judge:
[15] Plaintiff Vincent Miller, a prison inmate, appeals from a grant of summary judgment by the United States District Court for the Northern District of New York (Con. G. Cholakis, Judge), dismissing his civil rights action under 42 U.S.C. Section(s) 1983. Miller alleged that defendants, who are prison officials, deprived him of procedural due process in disciplinary proceedings that led to his confinement in a special housing unit (SHU) for 125 days. Citing Sandin v. Conner, ___ U.S. ___, 115 S. Ct. 2293 (1995), the district court ruled, as a matter of law, that disciplinary confinement in segregated housing does not involve a constitutionally protected liberty interest because it does not impose a hardship that is "atypical and significant" for convicted prisoners. As a result, the court found that Miller's segregation was not within the concerns of the Fourteenth Amendment, and he had no valid claim under the due process clause.
[16] Because the district court based its ruling on an erroneous interpretation of Sandin, we vacate the judgment and remand for further proceedings.
[17] Background
[18] On September 6, 1992, Miller, an inmate at the Bare Hill Correctional Facility, was charged with assault, fighting, and creating a disturbance. Sergeant Rocque, a corrections officer who is not a party to this action, filed a written report stating that he had found, "[t]hrough investigation and information received from confidential sources," that Miller had assaulted another inmate and inflicted physical injury on him.
[19] From September 10 to 14, 1992, defendant Corrections Officer S. Bruso held hearings on these charges. Stating that he was relying on Rocque's report, "confidential testimony," and "conflicting testimony" of witnesses called by Miller, Bruso found Miller guilty and imposed punishment of 180 days in the SHU and the loss of six months of good time credit. Bruso noted that "this severe penalty is warranted" because the victim was "severely beaten and could have sustained permanent injury." Bruso denied Miller's request to attend the testimony of the confidential witnesses or to review transcripts of that testimony. On a "witness interview" form given to Miller, Bruso explained that "I have taken confidential testimony, and by its very nature you cannot be allowed to receive it." Miller thereafter filed an administrative appeal with defendant Donald Selsky, the Director of the Special Housing/Inmate Disciplinary Program for the Department of Corrections, who affirmed Bruso's ruling on November 16, 1992. On November 29, 1992, Miller brought an Article 78 proceeding in New York Supreme Court, Franklin County, to challenge this decision. On January 8, 1993, Selsky administratively reversed his prior ruling and vacated the imposition of discipline on Miller. In internal prison correspondence, Selsky explained that he had reversed his previous decision after consulting with the State Attorney General's Office because the record of Bruso's hearing was incomplete and the "confidential tape" was "unavailable for judicial review." Although the charges were "expunged" from his record, Miller served 125 days in the SHU before the finding of misconduct was vacated.
[20] On February 3, 1994, Miller brought this action pro se *fn1 under 42 U.S.C. Section(s) 1983, alleging that defendants deprived him of procedural due process by excluding him from the confidential testimony and by preventing him from reviewing transcripts of that testimony. The complaint also alleged that Selsky violated New York law by initially affirming the imposition of discipline. Miller sought compensatory and punitive damages.
[21] On November 10, 1994, defendants moved for summary judgment arguing that (1) Selsky's eventual reversal of the initial finding "cured all procedural errors"; (2) Selsky was entitled to absolute immunity; (3) both defendants were entitled to qualified immunity; and (4) Miller could not recover compensatory or punitive damages because he had not alleged a constitutional injury.
[22] Magistrate Judge Daniel Scanlon Jr., to whom the motion was referred for recommendation and report, recommended that defendants' motion for summary judgment be granted. *fn2 The magistrate judge found that Miller had received due process during the disciplinary proceedings and that Selsky had qualified immunity from any potential liability for failing to ascertain promptly that the hearing record was incomplete and therefore subject to reversal.
[23] On review, the district court reached the same result, *fn3 but applied another rationale, drawn from the United States Supreme Court's intervening decision in Sandin. The district court interpreted Sandin to mean that the imposition of segregated confinement, as a matter of law, does not create a "hardship" that is "atypical and significant" compared with the "ordinary incidents of prison life," and accordingly does not involve an actionable deprivation of liberty. The court also held that as Miller's good time credits were restored before he became eligible for parole, their temporary loss did not deprive him of liberty.
[24] Discussion
[25] We agree with the district court that in Sandin the Supreme Court explicitly held that disciplinary confinement does not deprive an inmate of a liberty interest unless the confinement imposes an "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin, ___ U.S. at ___, 115 S.Ct. at 2300. But the Court did not intimate that disciplinary confinement could never, as a matter of law, impose such a hardship.
[26] To the contrary, the Court examined closely the circumstances of the inmate's confinement and compared them to the conditions facing the general inmate population. Noting the duration (30 days) and character of the confinement, and the fact it would not "inevitably affect the duration of his sentence," the Court found that the "regime to which he was subjected as a result of the misconduct hearing was within the range of confinement to be normally expected for one serving an indeterminate term of 30 years to life." ___ U.S. ___, id. at 2301-02.
[27] The language and analysis in Sandin make clear that the Court did not intend to suggest that discipline in segregated confinement could never present such an "atypical, significant deprivation." Id. at 2301. We have implicitly reached this conclusion in other cases since the Supreme Court decided Sandin. In Frazier v. Coughlin, 81 F.3d 313, 317 (2d Cir. 1996) (per curiam), we affirmed the dismissal of an inmate's action because the district court's "extensive fact-finding" supported its decision. In doing so, we noted that the inmate had "not shown that the conditions of his confinement in the SHU were dramatically different from the `basic conditions of [his] indeterminate sentence.'" Id. (quoting Sandin, ___ U.S. ___, 115 S. Ct. at 2301). In Samuels v. Mockry, 77 F.3d 34 (2d Cir. 1996), and Branham v. Meachum, 77 F.3d 626 (2d Cir. 1996), we remanded for district courts to consider whether inmates who had been confined to their cells had been deprived of a liberty interest.
[28] These earlier post-Sandin decisions implied what we now state explicitly: Sandin did not create a per se blanket rule that disciplinary confinement may never implicate a liberty interest. Courts of appeals in other circuits have apparently come to the same conclusion, recognizing that district courts must examine the circumstances of a confinement to determine whether that confinement affected a liberty interest. See, e.g., Kennedy v. Blankenship, 100 F.3d 640, 642-43 (8th Cir. 1996); Keenan v. Hall, 83 F.3d 1083, 1089 (9th Cir. 1996); Williams v. Fountain, 77 F.3d 372, 374 n.3 (11th Cir.), cert. denied, 117 S. Ct. 367 (1996); Whitford v. Boglino, 63 F.3d 527, 533 (7th Cir. 1995). But cf. McGuinness v. Dubois, 75 F.3d 794, 797 n.3 (1st Cir. 1996) (stating, in case involving a 30-day confinement, that the Sandin Court "concluded that solitary confinement did not present the type of atypical, significant deprivation in which a state might conceivably create a liberty interest.").
[29] We therefore remand for reconsideration of the defendants' motion for summary judgment. Our remand in no way suggests the motion should be denied. If the district court reaffirms the grant of the motion on the ground that Miller's confinement did not impose an "atypical and significant hardship . . . in relation to the ordinary incidents of prison life," the ruling should identify specific facts that support this conclusion.
[30] Because Sandin was decided after the parties briefed the summary judgment motion, neither side submitted evidence or arguments on the issue of whether Miller's confinement was an "atypical and significant" deprivation. Nor did the state have the opportunity to make the argument it raises on appeal -- that New York statutes and prison regulations do not create a liberty interest in avoiding segregated confinement. Unless the court decides the motion on a different basis, the state should be offered the opportunity to expand the record on the pertinent issues, and Miller to reply. The district court is free as well to rely on other grounds of the defendants' motion, such as whether defendants are entitled to qualified immunity, whether Miller received due process, *fn4 and whether New York has created a liberty interest in avoiding segregated confinement.
[31] Conclusion
[32] We vacate the judgment and remand for further proceedings.
***** BEGIN FOOTNOTE(S) HERE *****
[33] *fn1 Although Miller proceeded pro se in the district court, he has been represented by counsel on appeal.
[34] *fn2 Report and Recommendation dated May 8, 1995.
[35] *fn3 Memorandum Decision and Order dated November 22, 1995.
[36] *fn4 The defendants contend the district court ruled in their favor on the due process issue. Although there is language in the district court's opinion that may support this contention, the passage is unclear and includes a mistaken statement of law on the effect of administrative reversal of the disciplinary hearing. We are not confident the district court resolved the motion on this alternative ground.
***** END FOOTNOTE(S) HERE *****
[Editor's note: Illustrations from the original opinion, if any, are available in the print version]
19970402