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Fact Finding Required in Disciplinary Suits
In two separate rulings federal district courts in New York held that prisoners litigating disciplinary due process cases must be given an opportunity to develop a factual record to support their claims before the court rules on a motion to dismiss or for summary judgment.
Carlos Cespedes, a New York state prisoner, filed suit seeking money damages from a disciplinary hearing that resulted in lost good time credits and time spent in disciplinary segregation, after a state court had vacated the disciplinary finding. In Cespedes v. Coughlin , 956 F. Supp. 454 (SD NY 1997) the court dismissed his lawsuit pursuant to Sandin v. Connor , 515 U.S. 472, 115 S.Ct. 2293 (1995) [ PLN , Aug. 1995], holding that Cespedes had no federal due process right not to be placed in segregation. Cespedes appealed.
In the meantime, the second circuit issued rulings in Miller v. Selsky , 111 F.3d 7 (2nd Cir. 1997) and Brooks v. Difasi , 112 F.3d 46 (2nd Cir. 1997) [ PLN , Sep. 1997] holding that Sandin did not imply that disciplinary segregation, by itself, could never violate due process. Based on these rulings Cespedes withdrew his appeal and the parties filed a joint Fed.R.Civ.P. 60 motion asking the district court to reconsider its dismissal of the case. The court granted the motion because it had not allowed Cespedes to conduct discovery to develop the factual record to support his section 1983 claim based on his SHU confinement. See: Cespedes v. Coughlin , 969 F. Supp. 254 (SD NY 1997).
Louis Gonzalez, another New York state prisoner, filed suit under section 1983 seeking money damages after a state court vacated a disciplinary infraction finding his due process rights had been violated at a disciplinary hearing. Gonzalez sought damages for a total of 268 days spent in segregation. The defendants filed a motion to dismiss, arguing that New York prisoners have no due process right to remain free of disciplinary segregation. The court relied on Miller, Brooks and Sealey v. Giltner , 116 F.3d 47 (2nd Cir. 1997) to deny the motion. "The issue whether plaintiff's confinement imposed an 'atypical and significant hardship' under Sandin is a factual one, inappropriate for determination on a motion to dismiss a complaint."
The court rejected the defendants' argument that Sandin overruled prior second circuit cases finding New York state prisoners had a due process liberty interest in remaining free from disciplinary segregation. See: McCann v. Coughlin , 698 F.2d 112 (2nd Cir. 1983); Sher v. Coughlin , 739 F.2d 652 (2nd Cir. 1984); Walker v. Bates , 23 F.3d 652 (2nd Cir. 1994) and Benitez v. Wolff , 985 F.2d 662 (2nd Cir. 1993). Instead, the court held that the rules by themselves no longer create a liberty interest. After Sandin there must also be a significant and atypical deprivation. Because Sandin did not overrule Wolff v. McDonnell , 418 U.S. 539, 94 S.Ct. 2963 (1974) the court held that "federal cases finding under Wolff that New York state regulations granted a protected liberty interest to inmates are still good law."
The court also denied the defendants' motion to transfer the case to another district in New York, holding they had not shown why transfer was necessary for the convenience of the defense's witnesses. See: Gonzalez v. Coughlin , 969 F. Supp. 256 (SD NY 1997).
Carlos Cespedes, a New York state prisoner, filed suit seeking money damages from a disciplinary hearing that resulted in lost good time credits and time spent in disciplinary segregation, after a state court had vacated the disciplinary finding. In Cespedes v. Coughlin , 956 F. Supp. 454 (SD NY 1997) the court dismissed his lawsuit pursuant to Sandin v. Connor , 515 U.S. 472, 115 S.Ct. 2293 (1995) [ PLN , Aug. 1995], holding that Cespedes had no federal due process right not to be placed in segregation. Cespedes appealed.
In the meantime, the second circuit issued rulings in Miller v. Selsky , 111 F.3d 7 (2nd Cir. 1997) and Brooks v. Difasi , 112 F.3d 46 (2nd Cir. 1997) [ PLN , Sep. 1997] holding that Sandin did not imply that disciplinary segregation, by itself, could never violate due process. Based on these rulings Cespedes withdrew his appeal and the parties filed a joint Fed.R.Civ.P. 60 motion asking the district court to reconsider its dismissal of the case. The court granted the motion because it had not allowed Cespedes to conduct discovery to develop the factual record to support his section 1983 claim based on his SHU confinement. See: Cespedes v. Coughlin , 969 F. Supp. 254 (SD NY 1997).
Louis Gonzalez, another New York state prisoner, filed suit under section 1983 seeking money damages after a state court vacated a disciplinary infraction finding his due process rights had been violated at a disciplinary hearing. Gonzalez sought damages for a total of 268 days spent in segregation. The defendants filed a motion to dismiss, arguing that New York prisoners have no due process right to remain free of disciplinary segregation. The court relied on Miller, Brooks and Sealey v. Giltner , 116 F.3d 47 (2nd Cir. 1997) to deny the motion. "The issue whether plaintiff's confinement imposed an 'atypical and significant hardship' under Sandin is a factual one, inappropriate for determination on a motion to dismiss a complaint."
The court rejected the defendants' argument that Sandin overruled prior second circuit cases finding New York state prisoners had a due process liberty interest in remaining free from disciplinary segregation. See: McCann v. Coughlin , 698 F.2d 112 (2nd Cir. 1983); Sher v. Coughlin , 739 F.2d 652 (2nd Cir. 1984); Walker v. Bates , 23 F.3d 652 (2nd Cir. 1994) and Benitez v. Wolff , 985 F.2d 662 (2nd Cir. 1993). Instead, the court held that the rules by themselves no longer create a liberty interest. After Sandin there must also be a significant and atypical deprivation. Because Sandin did not overrule Wolff v. McDonnell , 418 U.S. 539, 94 S.Ct. 2963 (1974) the court held that "federal cases finding under Wolff that New York state regulations granted a protected liberty interest to inmates are still good law."
The court also denied the defendants' motion to transfer the case to another district in New York, holding they had not shown why transfer was necessary for the convenience of the defense's witnesses. See: Gonzalez v. Coughlin , 969 F. Supp. 256 (SD NY 1997).
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Related legal cases
Cespedes v. Coughlin
| Year | 1997 |
|---|---|
| Cite | 969 F. Supp. 254 (SD NY 1997) |
| Level | District Court |
| Attorney Fees | 0 |
| Damages | 0 |
| Injunction Status | N/A |
CESPEDES v. COUGHLIN, 969 F. Supp. 254 (S.D.N.Y. 07/22/1997)
[1] UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
[2] 90 Civ. 2667 (DNE)
[3] 969 F. Supp. 254
[4] July 22, 1997
[5] CARLOS CESPEDES, Plaintiff, against THOMAS A. COUGHLIN, III, Commissioner of New York State Department of Correctional Services; JOHN P. KEANE, Superintendent; CHARLES GREINER, Deputy Superintendent of Security; F. ORENGO, Captain; JOHN DOE, Captain; M. STOKES, Lieutenant; SGT. FIELDS, Sergeant; SGT. ALBELO, Sergeant; and J. ROMAN, Correctional Officer, Defendants.
[6] APPEARANCES: , Dianne L. Rosky, Esq., New York, New York, for plaintiff.
[7] David N. Edelstein, U.S.D.J.
[8] The opinion of the court was delivered by: EDELSTEIN
[9] Opinion & Order
[10] Edelstein, District Judge :
[11] Currently before this Court is a "Joint Motion for Relief From Order," in which both parties ask this Court to reconsider its rulings in Cespedes v. Coughlin, 956 F. Supp. 454 (S.D.N.Y. 1997) (the "February 1997 Opinion"). For the reasons herein stated, the parties' joint motion is granted.
[12] In the February 1997 Opinion, this Court conducted an exhaustive review of the procedural and factual history of this case. See id. 956 F. Supp. at 457-62. Accordingly, this Court presently will review only as much background as is necessary to resolve the instant motion.
[13] In 1989, plaintiff Carlos Cespedes ("plaintiff" or "Cespedes"), a prisoner at the Ossining Correctional Facility ("Sing Sing"), was charges with the assault of another prisoner. See id. 956 F. Supp. at 458-59. At a prison disciplinary hearing, Cespedes was found guilty of that assault, and sentenced to one year of segregated confinement in Sing Sing's Special Housing Unit ("SHU") and a loss of one year of "good time credits" and commissary, phone and package privileges. See id. at 460. Citing flaws in his disciplinary hearing, Cespedes successfully appealed his sentence. See id. Cespedes, however, was not released from SHU until after he had served 104 days in SHU confinement. See id. at 471.
[14] In 1990, Cespedes filed the instant lawsuit against nine prison officials, alleging violations of 42 U.S.C. § 1983, as well as several state law claims. See id. at 461. In the February 1997 Opinion, this Court relied upon Sandin v. Conner, 515 U.S. 472, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995), to find that Cespedes had not been denied any due process rights as a result of his wrongful SHU confinement. See Cespedes, 956 F. Supp. at 472. In so finding, this Court observed that the Second Circuit had yet to definitively construe Sandin. See id. at 469. Without binding precedent to guide this Court's interpretation of Sandin, this Court reviewed a substantial body of case law from the district courts of the Second Circuit and found that these decisions "unequivocally demonstrate [the district courts'] virtual refusal to find [a Section 1983 violation] arising from a prisoner's [disciplinary segregated] confinement, even where the term of confinement is substantial." Id. at 470. Furthermore, this Court found that Sandin and other district courts' interpretations of it precluded Cespedes request to develop a factual record in order to substantiate his Section 1983 claim. See id. at 472. As a result of this reading of Sandin, this Court granted summary judgment in favor of two of the defendant prison officials, see id., and dismissed Cespedes Section 1983 claims sua sponte against two other defendants. See id. at 477.
[15] On February 28, 1997, Cespedes appealed this Court's 1997 opinion to the Second Circuit. (Notice of Appeal, Cespedes v. Coughlin, 90 Civ. 2667 (Feb. 28, 1997)). On May 21, 1997, before the Second Circuit heard Cespedes' appeal, the parties filed with the Second Circuit a stipulation under which Cespedes would agree to withdraw his appeal, and that the parties would jointly file a motion under Federal Rule of Civil Procedure ("Rule") 60(b). (Stipulation, Cespedes v. Coughlin, 97-2134 (May 21, 1997).
[16] On June 20, 1997, the parties filed a joint motion, pursuant to Federal Rule of Civil Procedure ("Rule") 60(b)(6), in light of two decisions handed down by the Second Circuit after this Court issued the 1997 Opinion. (Memorandum of Law In Support of the parties' Joint Motion For Relief From the Court's order, Cespedes v. Coughlin, 90 Civ. 2667 ("Joint Memo") at 4 (June 20, 1997).) Under Rule 60(b)(6), a court may provide relief from a prior order for "any . . . reason justifying relief." Fed. R. Civ. P. 60(b). In their Joint Memo, the parties contend that, Miller v. Selsky, 111 F.3d 7 (2d Cir. 1997), and Brooks v. Difasi, 112 F.3d 46 (2d Cir. 1997), each cast serious doubt upon the continued validity of this Court's 1997 Opinion. (Joint Memo at 6.) As a result, the parties jointly claim that these decisions provide a sufficient "reason justifying relief" under Rule 60(b)(6). See id.
[17] This Court agrees. In Selsky, for example, Judge Leval stated that "the language and analysis in Sandin make clear that the [Supreme] Court did not intend to suggest that discipline in segregated confinement could never present [a Section 1983 violation]." 111 F.3d at 9. Indeed, Selsky states that the district courts which, like this Court, have found in Sandin a per se blanket rule that disciplinary confinement may never implicate a constitutionally protect liberty interest, are incorrect. See id.; accord Brooks, 112 F.3d at 49. In both Selsky and Brooks, the Second Circuit determined that instead of applying a blanket prohibition against a prisoner's actions based on segregated confinement, district courts "must examine the circumstances of [the] confinement to determine whether that confinement affected a liberty interest." Selsky, 111 F.3d at 9; see Brooks, 112 F.3d at 49.
[18] Because this Court did not allow Cespedes to conduct discovery to develop a factual record supporting his Section 1983 claim based on his SHU confinement, this Court finds that Cespedes should be granted relief. Accordingly, this Court finds that Cespedes' claims based upon his 104-day SHU confinement should be reinstated. Accordingly, this Court finds that the instant joint motion should be granted.
[19] CONCLUSION
[20] IT IS HEREBY ORDERED THAT the Parties' Joint Motion For Relief From The Court's Order is GRANTED.
[21] IT IS FURTHER ORDERED THAT the parties jointly submit to this Court a discovery schedule no later than August 22, 1997.
[22] SO ORDERED.
[23] DATED: New York, New York
[24] July 22, 1997
[25] David N. Edelstein
[26] U.S.D.J.
[1] UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
[2] 90 Civ. 2667 (DNE)
[3] 969 F. Supp. 254
[4] July 22, 1997
[5] CARLOS CESPEDES, Plaintiff, against THOMAS A. COUGHLIN, III, Commissioner of New York State Department of Correctional Services; JOHN P. KEANE, Superintendent; CHARLES GREINER, Deputy Superintendent of Security; F. ORENGO, Captain; JOHN DOE, Captain; M. STOKES, Lieutenant; SGT. FIELDS, Sergeant; SGT. ALBELO, Sergeant; and J. ROMAN, Correctional Officer, Defendants.
[6] APPEARANCES: , Dianne L. Rosky, Esq., New York, New York, for plaintiff.
[7] David N. Edelstein, U.S.D.J.
[8] The opinion of the court was delivered by: EDELSTEIN
[9] Opinion & Order
[10] Edelstein, District Judge :
[11] Currently before this Court is a "Joint Motion for Relief From Order," in which both parties ask this Court to reconsider its rulings in Cespedes v. Coughlin, 956 F. Supp. 454 (S.D.N.Y. 1997) (the "February 1997 Opinion"). For the reasons herein stated, the parties' joint motion is granted.
[12] In the February 1997 Opinion, this Court conducted an exhaustive review of the procedural and factual history of this case. See id. 956 F. Supp. at 457-62. Accordingly, this Court presently will review only as much background as is necessary to resolve the instant motion.
[13] In 1989, plaintiff Carlos Cespedes ("plaintiff" or "Cespedes"), a prisoner at the Ossining Correctional Facility ("Sing Sing"), was charges with the assault of another prisoner. See id. 956 F. Supp. at 458-59. At a prison disciplinary hearing, Cespedes was found guilty of that assault, and sentenced to one year of segregated confinement in Sing Sing's Special Housing Unit ("SHU") and a loss of one year of "good time credits" and commissary, phone and package privileges. See id. at 460. Citing flaws in his disciplinary hearing, Cespedes successfully appealed his sentence. See id. Cespedes, however, was not released from SHU until after he had served 104 days in SHU confinement. See id. at 471.
[14] In 1990, Cespedes filed the instant lawsuit against nine prison officials, alleging violations of 42 U.S.C. § 1983, as well as several state law claims. See id. at 461. In the February 1997 Opinion, this Court relied upon Sandin v. Conner, 515 U.S. 472, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995), to find that Cespedes had not been denied any due process rights as a result of his wrongful SHU confinement. See Cespedes, 956 F. Supp. at 472. In so finding, this Court observed that the Second Circuit had yet to definitively construe Sandin. See id. at 469. Without binding precedent to guide this Court's interpretation of Sandin, this Court reviewed a substantial body of case law from the district courts of the Second Circuit and found that these decisions "unequivocally demonstrate [the district courts'] virtual refusal to find [a Section 1983 violation] arising from a prisoner's [disciplinary segregated] confinement, even where the term of confinement is substantial." Id. at 470. Furthermore, this Court found that Sandin and other district courts' interpretations of it precluded Cespedes request to develop a factual record in order to substantiate his Section 1983 claim. See id. at 472. As a result of this reading of Sandin, this Court granted summary judgment in favor of two of the defendant prison officials, see id., and dismissed Cespedes Section 1983 claims sua sponte against two other defendants. See id. at 477.
[15] On February 28, 1997, Cespedes appealed this Court's 1997 opinion to the Second Circuit. (Notice of Appeal, Cespedes v. Coughlin, 90 Civ. 2667 (Feb. 28, 1997)). On May 21, 1997, before the Second Circuit heard Cespedes' appeal, the parties filed with the Second Circuit a stipulation under which Cespedes would agree to withdraw his appeal, and that the parties would jointly file a motion under Federal Rule of Civil Procedure ("Rule") 60(b). (Stipulation, Cespedes v. Coughlin, 97-2134 (May 21, 1997).
[16] On June 20, 1997, the parties filed a joint motion, pursuant to Federal Rule of Civil Procedure ("Rule") 60(b)(6), in light of two decisions handed down by the Second Circuit after this Court issued the 1997 Opinion. (Memorandum of Law In Support of the parties' Joint Motion For Relief From the Court's order, Cespedes v. Coughlin, 90 Civ. 2667 ("Joint Memo") at 4 (June 20, 1997).) Under Rule 60(b)(6), a court may provide relief from a prior order for "any . . . reason justifying relief." Fed. R. Civ. P. 60(b). In their Joint Memo, the parties contend that, Miller v. Selsky, 111 F.3d 7 (2d Cir. 1997), and Brooks v. Difasi, 112 F.3d 46 (2d Cir. 1997), each cast serious doubt upon the continued validity of this Court's 1997 Opinion. (Joint Memo at 6.) As a result, the parties jointly claim that these decisions provide a sufficient "reason justifying relief" under Rule 60(b)(6). See id.
[17] This Court agrees. In Selsky, for example, Judge Leval stated that "the language and analysis in Sandin make clear that the [Supreme] Court did not intend to suggest that discipline in segregated confinement could never present [a Section 1983 violation]." 111 F.3d at 9. Indeed, Selsky states that the district courts which, like this Court, have found in Sandin a per se blanket rule that disciplinary confinement may never implicate a constitutionally protect liberty interest, are incorrect. See id.; accord Brooks, 112 F.3d at 49. In both Selsky and Brooks, the Second Circuit determined that instead of applying a blanket prohibition against a prisoner's actions based on segregated confinement, district courts "must examine the circumstances of [the] confinement to determine whether that confinement affected a liberty interest." Selsky, 111 F.3d at 9; see Brooks, 112 F.3d at 49.
[18] Because this Court did not allow Cespedes to conduct discovery to develop a factual record supporting his Section 1983 claim based on his SHU confinement, this Court finds that Cespedes should be granted relief. Accordingly, this Court finds that Cespedes' claims based upon his 104-day SHU confinement should be reinstated. Accordingly, this Court finds that the instant joint motion should be granted.
[19] CONCLUSION
[20] IT IS HEREBY ORDERED THAT the Parties' Joint Motion For Relief From The Court's Order is GRANTED.
[21] IT IS FURTHER ORDERED THAT the parties jointly submit to this Court a discovery schedule no later than August 22, 1997.
[22] SO ORDERED.
[23] DATED: New York, New York
[24] July 22, 1997
[25] David N. Edelstein
[26] U.S.D.J.
Gonzalez v. Coughlin
| Year | 1997 |
|---|---|
| Cite | 969 F. Supp. 256 ( SDNY 1997) |
| Level | District Court |
LOUIS GONZALEZ, Plaintiff, -against- THOMAS COUGHLIN, COMMISSIONER, et al., Defendants.
95 Civ. 5454 (LLS)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
969 F. Supp. 256; 1997 U.S. Dist. LEXIS 10658
July 23, 1997, Decided
July 24, 1997, FILED
DISPOSITION: [**1] Defendants' motions to dismiss and to transfer denied.
COUNSEL: LOUIS GONZALEZ, plaintiff, Pro se, Attica Correctional Facility, Attica, NY. For LOUIS GONZALEZ, plaintiff: Sean R. O'Brien, Sullivan & Cromwell, New York, NY.
For DONALD SELSKY, Director, Special Housing/Inmate Disciplinary Program, N.Y.S., D.O.C.S., defendant: Richard J. Cardinale, State of New York, Office of the Attorney General, New York, NY. For HEARING OFFICER MAHONEY, defendant: Richard J. Cardinale, (See above). For SING SING CORRECTIONAL FACILITY, defendant: Richard J. Cardinale, (See above). For LT. WALTER, Hearing Officer, defendant: Richard J. Cardinale, (See above). For CORRECTION OFFICER KAWALESKI, defendant: Richard J. Cardinale, (See above). For WENDE CORRECTIONAL FACILITY, defendant: Richard J. Cardinale, (See above).
JUDGES: LOUIS L. STANTON, U. S. D. J.
OPINIONBY: LOUIS L. STANTON
OPINION:
[*256] OPINION AND ORDER
Plaintiff Louis Gonzalez is an inmate in the New York State prison system. He alleges [*257] that at his first Tier III hearing n1 for misconduct, which resulted in a finding of guilt and was followed by 221 days in the Special Housing Unit ("SHU"), he was not allowed to call all his witnesses to testify. The determination [**2] reached at that hearing was vacated by the Supreme Court of the State of New York. Plaintiff claims that at his second Tier III hearing on the same charges, which resulted again in a finding of guilt and was followed by an additional 47 days in the SHU, he was denied the assistance in preparing his defense to which he was legally entitled. Although defendant Selsky ultimately reversed the decision reached at the second Tier III hearing, by that time plaintiff had served a total of 268 days in the SHU.
n1 A Tier III hearing is used to address the most serious infractions of prison rules and may result in unlimited confinement in SHU.
The defendants move to dismiss his complaint (claiming due process violations), or to transfer his case to the United States District Court for the Western District of New York.
Discussion
The Motion to Dismiss
Following Sandin v. Conner, 515 U.S. 472, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995), the Court of Appeals for the Second Circuit stated in Frazier [**3] v. Coughlin, 81 F.3d 313, 317 (2d Cir. 1996), that an inmate like Gonzalez
must establish both that the confinement or restraint creates an "atypical and significant hardship" under Sandin, and that the state has granted its inmates, by regulation or by statute, a protected liberty interest in remaining free from that confinement or restraint.
1. Atypical hardship
The issue whether plaintiff's confinement imposed an "atypical and significant hardship" under Sandin is a factual one, inappropriate for determination on a motion to dismiss a complaint. As the Second Circuit stated in Brooks v. Difasi, 112 F.3d 46, 49 (2d Cir. 1997), "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 same point has been made in Miller v. Selsky, 111 F.3d 7, 9 (2d Cir. 1997) ("recognizing that district courts must examine the circumstances of a confinement to determine whether that confinement affected a liberty interest" and remanding for reconsideration of a motion for summary judgment) and in Sealey v. Giltner, 116 F.3d 47, [**4] 1997 WL 327344 at *5 (2d Cir. 1997) (reversing summary judgment for certain defendants and remanding to afford plaintiff "an opportunity to develop additional facts relevant to the liberty analysis").
2. Regulations granting a protected liberty interest
I reject the defendants' argument (Defs.' Nov. 4, 1996 Reply Mem. p. 7) that the federal cases holding that New York prison regulations afford inmates a liberty interest in remaining free from segregated confinement "are no longer good law." Frazier v. Coughlin did not overrule them. Its statement that Sandin "may be read as calling into question the continuing viability of [those] cases," Frazier, 81 F.3d at 317, merely explains that such regulations by themselves no longer create a liberty interest; after Sandin, there must also be a deprivation which is atypical and significant. The cases that defendants urge "are no longer good law" expressed the principles established in Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974), holding, for example, that "an inmate who is or may be sentenced to a term of confinement in a Special Housing Unit has a right [**5] to the procedural protections of the Due Process Clause." McCann v. Coughlin, 698 F.2d 112, 121 (2d Cir. 1983). See also Sher v. Coughlin, 739 F.2d 77, 81 (2d Cir. 1984) ("When restrictive confinement within a prison is expressly imposed as a disciplinary sanction, for example, as a punishment . . . , there will ordinarily be no doubt that the confinement impaired a liberty interest protected by state law . . . ."); accord Walker v. Bates, 23 F.3d 652, 656 (2d Cir. 1994); see also Benitez v. Wolff, 985 F.2d 662, 665 (2d Cir. 1993) ("When [*258] an inmate is charged with a rules violation that could lead to the loss of good-time credits or to confinement in SHU, at least the 'minimum requirements of procedural due process appropriate for the circumstances must be observed.'") (quoting Wolff v. McDonnell, 418 U.S. at 558, 94 S. Ct. at 2976). The Supreme Court in Sandin expressly stated its belief that the due process principles "were correctly established and applied in Wolff." Sandin, 515 U.S. 472, 132 L. Ed. 2d 418, 115 S. Ct. at 2300. Thus, federal cases finding under Wolff that New York State regulations granted a protected liberty interest to inmates are still good [**6] law.
The Motion to Transfer
Gonzalez's first Tier III hearing was held in Sing Sing, defendant Mahoney is in the Southern District of New York, and defendant Selsky is in its Northern District. Two of the proposed correction officer witnesses are located in the Southern District, two other potential witnesses are in the Eastern District, and one is in the Northern District. Neither party has attempted to set forth the substance of the testimony of the witnesses whose convenience would be served by transfer, as is required by Factors Etc., Inc. v. Pro Arts, Inc., 579 F.2d 215, 218 (2d Cir. 1978) ("When a party seeks the transfer on account of the convenience of witnesses under 1404(a), he must clearly specify the key witnesses to be called and must make a general statement of what their testimony will cover."); accord Anglo Am. Ins. Group, P.L.C. v. Calfed Inc., 916 F. Supp. 1324, 1338 (S.D.N.Y. 1996). But cf. Tomchuck v. Union Trust Co., 875 F. Supp. 242, 244 (S.D.N.Y. 1995) (listing "circumstances in which a defendant's failure to specify the witnesses and the substance of their testimony may be excused").
Under the circumstances, the fact that plaintiff (who [**7] opposes transfer) and two other defendants are in the Western District does not meet defendants' burden of showing that "the balance of factors tips heavily in favor of transfer," S-Fer Int'l, Inc. v. Paladion Partners, Ltd., 906 F. Supp. 211, 213 (S.D.N.Y. 1995).
Conclusion
Defendants' motions to dismiss and to transfer are denied.
So ordered.
DATED: New York, New York
July 23, 1997
LOUIS L. STANTON
U. S. D. J.
95 Civ. 5454 (LLS)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
969 F. Supp. 256; 1997 U.S. Dist. LEXIS 10658
July 23, 1997, Decided
July 24, 1997, FILED
DISPOSITION: [**1] Defendants' motions to dismiss and to transfer denied.
COUNSEL: LOUIS GONZALEZ, plaintiff, Pro se, Attica Correctional Facility, Attica, NY. For LOUIS GONZALEZ, plaintiff: Sean R. O'Brien, Sullivan & Cromwell, New York, NY.
For DONALD SELSKY, Director, Special Housing/Inmate Disciplinary Program, N.Y.S., D.O.C.S., defendant: Richard J. Cardinale, State of New York, Office of the Attorney General, New York, NY. For HEARING OFFICER MAHONEY, defendant: Richard J. Cardinale, (See above). For SING SING CORRECTIONAL FACILITY, defendant: Richard J. Cardinale, (See above). For LT. WALTER, Hearing Officer, defendant: Richard J. Cardinale, (See above). For CORRECTION OFFICER KAWALESKI, defendant: Richard J. Cardinale, (See above). For WENDE CORRECTIONAL FACILITY, defendant: Richard J. Cardinale, (See above).
JUDGES: LOUIS L. STANTON, U. S. D. J.
OPINIONBY: LOUIS L. STANTON
OPINION:
[*256] OPINION AND ORDER
Plaintiff Louis Gonzalez is an inmate in the New York State prison system. He alleges [*257] that at his first Tier III hearing n1 for misconduct, which resulted in a finding of guilt and was followed by 221 days in the Special Housing Unit ("SHU"), he was not allowed to call all his witnesses to testify. The determination [**2] reached at that hearing was vacated by the Supreme Court of the State of New York. Plaintiff claims that at his second Tier III hearing on the same charges, which resulted again in a finding of guilt and was followed by an additional 47 days in the SHU, he was denied the assistance in preparing his defense to which he was legally entitled. Although defendant Selsky ultimately reversed the decision reached at the second Tier III hearing, by that time plaintiff had served a total of 268 days in the SHU.
n1 A Tier III hearing is used to address the most serious infractions of prison rules and may result in unlimited confinement in SHU.
The defendants move to dismiss his complaint (claiming due process violations), or to transfer his case to the United States District Court for the Western District of New York.
Discussion
The Motion to Dismiss
Following Sandin v. Conner, 515 U.S. 472, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995), the Court of Appeals for the Second Circuit stated in Frazier [**3] v. Coughlin, 81 F.3d 313, 317 (2d Cir. 1996), that an inmate like Gonzalez
must establish both that the confinement or restraint creates an "atypical and significant hardship" under Sandin, and that the state has granted its inmates, by regulation or by statute, a protected liberty interest in remaining free from that confinement or restraint.
1. Atypical hardship
The issue whether plaintiff's confinement imposed an "atypical and significant hardship" under Sandin is a factual one, inappropriate for determination on a motion to dismiss a complaint. As the Second Circuit stated in Brooks v. Difasi, 112 F.3d 46, 49 (2d Cir. 1997), "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 same point has been made in Miller v. Selsky, 111 F.3d 7, 9 (2d Cir. 1997) ("recognizing that district courts must examine the circumstances of a confinement to determine whether that confinement affected a liberty interest" and remanding for reconsideration of a motion for summary judgment) and in Sealey v. Giltner, 116 F.3d 47, [**4] 1997 WL 327344 at *5 (2d Cir. 1997) (reversing summary judgment for certain defendants and remanding to afford plaintiff "an opportunity to develop additional facts relevant to the liberty analysis").
2. Regulations granting a protected liberty interest
I reject the defendants' argument (Defs.' Nov. 4, 1996 Reply Mem. p. 7) that the federal cases holding that New York prison regulations afford inmates a liberty interest in remaining free from segregated confinement "are no longer good law." Frazier v. Coughlin did not overrule them. Its statement that Sandin "may be read as calling into question the continuing viability of [those] cases," Frazier, 81 F.3d at 317, merely explains that such regulations by themselves no longer create a liberty interest; after Sandin, there must also be a deprivation which is atypical and significant. The cases that defendants urge "are no longer good law" expressed the principles established in Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974), holding, for example, that "an inmate who is or may be sentenced to a term of confinement in a Special Housing Unit has a right [**5] to the procedural protections of the Due Process Clause." McCann v. Coughlin, 698 F.2d 112, 121 (2d Cir. 1983). See also Sher v. Coughlin, 739 F.2d 77, 81 (2d Cir. 1984) ("When restrictive confinement within a prison is expressly imposed as a disciplinary sanction, for example, as a punishment . . . , there will ordinarily be no doubt that the confinement impaired a liberty interest protected by state law . . . ."); accord Walker v. Bates, 23 F.3d 652, 656 (2d Cir. 1994); see also Benitez v. Wolff, 985 F.2d 662, 665 (2d Cir. 1993) ("When [*258] an inmate is charged with a rules violation that could lead to the loss of good-time credits or to confinement in SHU, at least the 'minimum requirements of procedural due process appropriate for the circumstances must be observed.'") (quoting Wolff v. McDonnell, 418 U.S. at 558, 94 S. Ct. at 2976). The Supreme Court in Sandin expressly stated its belief that the due process principles "were correctly established and applied in Wolff." Sandin, 515 U.S. 472, 132 L. Ed. 2d 418, 115 S. Ct. at 2300. Thus, federal cases finding under Wolff that New York State regulations granted a protected liberty interest to inmates are still good [**6] law.
The Motion to Transfer
Gonzalez's first Tier III hearing was held in Sing Sing, defendant Mahoney is in the Southern District of New York, and defendant Selsky is in its Northern District. Two of the proposed correction officer witnesses are located in the Southern District, two other potential witnesses are in the Eastern District, and one is in the Northern District. Neither party has attempted to set forth the substance of the testimony of the witnesses whose convenience would be served by transfer, as is required by Factors Etc., Inc. v. Pro Arts, Inc., 579 F.2d 215, 218 (2d Cir. 1978) ("When a party seeks the transfer on account of the convenience of witnesses under 1404(a), he must clearly specify the key witnesses to be called and must make a general statement of what their testimony will cover."); accord Anglo Am. Ins. Group, P.L.C. v. Calfed Inc., 916 F. Supp. 1324, 1338 (S.D.N.Y. 1996). But cf. Tomchuck v. Union Trust Co., 875 F. Supp. 242, 244 (S.D.N.Y. 1995) (listing "circumstances in which a defendant's failure to specify the witnesses and the substance of their testimony may be excused").
Under the circumstances, the fact that plaintiff (who [**7] opposes transfer) and two other defendants are in the Western District does not meet defendants' burden of showing that "the balance of factors tips heavily in favor of transfer," S-Fer Int'l, Inc. v. Paladion Partners, Ltd., 906 F. Supp. 211, 213 (S.D.N.Y. 1995).
Conclusion
Defendants' motions to dismiss and to transfer are denied.
So ordered.
DATED: New York, New York
July 23, 1997
LOUIS L. STANTON
U. S. D. J.