Opinion
00 CV 2971 (ILG)
August 14, 2000
MEMORANDUM AND ORDER
The petitioner moves pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence, claiming that (1) the Court failed to comply with Rule 32 and Rule 11(c)(1) in not advising him that he faced a mandatory term of 5 years supervised release, and (2) he was denied effective assistance of counsel because his lawyer did not explain or discuss with him the term of supervised release he received. For the reasons that follow, the motion is denied.
DISCUSSION
On January 28, 1999, after a jury had been selected and the trial of Arroyo and eight co-defendants was about to begin, an oral global plea agreement was reached between the defendants and the government with the parties agreeing to specific terms of imprisonment ranging from 10 years to 30 years pursuant to Rule 11(e)(1)(C). After the parties advised the Court that all defendants were prepared to plead guilty, the Court — in the presence of all of the defendants and all of the defense lawyers — asked to be provided with information concerning "what the numbers are and what the maximum, minimum numbers would be, supervised release term, fines, special assessments as well." Govt. Exh. A at 3. After the prosecutor advised the Court about the agreed-upon terms of incarceration, the Court stated: "All I want to know is what are the fines and the supervised release." Id. The prosecutor then requested a short recess to provide the Court with those numbers. That the proceedings were actually interrupted for the specific purpose of allowing the prosecutor to provide the Court with the supervised release numbers should have left no doubt that terms of supervised release were a part of the global plea agreements.
Arroyo pleaded guilty to Count 17 of the indictment charging him with narcotics conspiracy in violation of 21 U.S.C. § 846. Arroyo and the government agreed to a prison term of 12 years. This represented a substantial departure from Arroyo's sentencing guideline range of 324-405 months and therefore had to be specifically approved by the Court, upon a showing of "justifiable reasons." U.S.S.G. § 6B1.2 (c)(2).
In a letter dated May 9, 1999, the government provided several justifications for the downward departure in Arroyo's term of incarceration. No similar representations were made concerning the agreed-upon term of supervised release, because there was no agreement to depart from the required supervised release term.
During Arroyo's plea allocution, held later in the day on January 28, 1999, the Court read Arroyo (and three of his co-defendants who were pleading guilty to the same count) Count 17 in its entirety. Govt. Exh. B at 8. Arroyo was advised of the minimum and maximum statutory sentences often years and life; he was also advised that he faced a term supervised release of 5 years in addition to his term of incarceration; and he stated that he understood what supervised release is. Id. at 14. It should also be noted that Arroyo waived his right to appeal his conviction and sentence as part of his plea agreement. Id. at 18-19.
Arroyo's Presentence Report specifies that a term of supervised release of 5 years was mandatory. PSR ¶¶ 72, 73. The PSR does not state, notwithstanding Arroyo's contention to the contrary, that the mandatory 5-year term of supervised release can be waived as a condition of the plea or otherwise. The PSR does state that the mandatory 5-year term of supervised release would not apply if Arroyo were eligible for application of the "safety valve" provision, 18 U.S.C. § 3553 (f). Arroyo can not dispute that he did not satisfy the conditions set forth in that provision.
Arroyo's trial counsel, Steven Bernstein, has submitted a declaration stating that he carefully reviewed the presentence report with his client; that at Arroyo's request he prepared and filed objections to the presentence report; that his client did not ask him to object to paragraphs 72 and 73 of the report; and that at no time did Mr. Bernstein advise his client that his client was or could be eligible for the "safety valve," which would allow the Court to depart from the mandatory 5-year term of supervised release. Govt. Exh. C, Declaration of Steven Bernstein.
On May 24, 1999, the Court accepted the 11(e)(1)(C) plea and sentenced Arroyo to a prison term of 144 months; five years supervised release; and a $100 special assessment. At the sentencing, neither Arroyo nor his attorney objected when a 5-year term of supervised release was imposed.
After the sentencing, Mr. Bernstein was in touch with Arroyo and took measures to ensure that a new PSR was prepared that reflected the agreed-upon changes to the PSR. Govt. Exh. F, June 7, 1999 Bernstein Letter. According to Mr. Bernstein, Arroyo never asked his attorney to file an appeal or otherwise object to the inclusion of a 5-year term of supervised release in his sentence. Govt. Exh. C, Bernstein Declaration.
Arroyo's motion is subject to summary dismissal for the simple reason that he waived his right to make a collateral attack by agreeing, as a part of his plea agreement, not to appeal his sentence. See United States v. Pipitone, 67 F.3d 34, 38-39 (2d Cir. 1995) (vacating a district court's grant of relief under Section 2255, where defendant had entered into a plea agreement agreeing not to file an "appeal," and stating that "[w]hatever linguistic distinction may be made between an `appeal' and a § 2255 petition, we are loathe to countenance so obvious a circumvention of the plea agreement") (citations omitted).
Arroyo offers no reason why this provision should not be enforced according to its terms. The plea agreement afforded him the benefit of a sentence substantially below the 324-405 month range otherwise applicable. Having received the benefit of such a bargain, Arroyo must also abide by its obligations. Accordingly, because he waived his right to appeal and to bring a collateral attack, this Court declines to review his claims. United States v. Salcido-Contreras, 990 F.2d 51 (2d Cir.),cert. denied, 509 U.S. 931 (1993); United States v. Rivera, 971 F.2d 876, 896 (2d Cir. 1992); Pipitone, 67 F.3d at 38-39.
CONCLUSION
For the reasons set forth, the motion for relief pursuant to 28 U.S.C. § 2255 is denied.
SO ORDERED considerably more difficult to escape from a maximum security prison (T. 332-34, 344). Cudney insisted that the Shawangunk incidents were not a significant factor to her.
I was aware of a problem at Shawangunk, but the problems there didn't make him any less of a risk (at] our facility. In other words, no matter what had happened at Shawangunk . . . the attempted escape and the . . ., were facts that were not going to change.
(T. 334). Cudney stressed that the stabbing, if relevant at all, would have suggested a need for protective custody, and not IPC (T. 344).
Counselor Deborah Watkins testified that the critical factors for her were Giano's pattern of criminal behavior, the fact that an officer was shot during the courthouse escape attempt, and that Giano successfully escaped from a maximum security prison. She noted that most prison escapes are actually "walkaways" from medium security facilities, in which the inmate does not have to cross barriers such as prison walls. Watkins also was concerned because Giano's stabbing injury was so serious and happened so soon after his release from keeplock (T. 363-65).
The Committee members' testimony suggests that they focused on factors that were quite relevant to the rationale for AS confinement: the safety and security of the facility. Giano's escape from Sing Sing, the violent outcome of the courthouse escape attempt, his ability to enlist other inmates in his plans, and the nature of the crime which put him in DOCS custody are factors that would raise a concern for security in the mind of any prison staff. However, none of these factors was mentioned in any of the weekly memoranda to Superintendent Kelly. Indeed, Committee members downplayed the significance of the only factor mentioned in the memoranda, the Shawangunk "incidents." None of the witnesses offered an explanation as to why they failed to mention any other factor in their memoranda to Kelly.
Also, although each Committee member testified as to his or her recollection of why he or she voted to retain Giano in AS, the witnesses did not indicate that they discussed these reasons during Committee meetings. Algier testified that he had no recollection of what the Committee discussed in reviewing Giano's case (T. 304). Cudney spoke in generalities of "the factors that had led to being retained in [AS] to decide if those factors were appropriate to keep them there or to remove them" (T. 330). Watkins testified that, as a relatively new staff person, she tended to ask questions rather than offer information at Committee meetings (T. 360). However, Watkins gave no details as to any questions that she asked during the review of Giano's status. Hall testified that the Committee discussed "the fact that [the stabbing] had occurred," (T. 249), but he did not indicate whether it discussed any other factors.
Common sense might suggest that Committee members would have discussed their respective rationales during the meetings. However, common sense might also suggest that the memoranda to Kelly would describe those rationales; yet the record does not reflect what the Committee actually discussed. It is possible that each member had a different reason for voting to keep Giano in AS, as one witness acknowledged (T. 350), and members do not appear to have been overly concerned with identifying the particular reasons why the Committee recommended each week that Giano remain in AS ( cf. T. 244).
There is no contemporaneous record of Kelly's review of the weekly AS recommendations, or of his weekly decisions to retain Giano in AS. However, Kelly testified that he did review the AS Committee's recommendations on a weekly basis and routinely approved them. Kelly testified it was not his practice to request further information from the Committee, and that he had no way of knowing what the Committee considered, apart from the rationale in the memoranda (T. 186-89). However, Kelly also testified that he considered the escape from Sing Sing when he reviewed Giano's status. Although not familiar with the details of that escape, Kelly considered it significant since, to his knowledge, no other prisoner ever escaped from Sing Sing, and since the escape made Giano a "high profile" inmate who might exert undue influence on other inmates (T. 169, 199-201). Kelly acknowledged that the stabbing was an important factor, particularly since he did not know the circumstances that led to the stabbing. "I don't know if it was over drugs, I don't know if it was over money, I don't know if it was over escapes, I don't know if it was racial" (T. 202).
Two aspects of the review process are striking. There was apparently an extraordinary degree of unanimity among Attica staff. AS Committee members never disagreed as to a recommendation (T. 349), and Kelly testified that he could not recall ever disagreeing with a Committee recommendation (T. 184). Also, there is no indication that Kelly or the Committee ever considered anything that occurred subsequent to Giano's placement in AS. There is no discussion of Giano's behavior or attitude while in AS of any changes in the facility environment that might have made it more or less risky to release him or of any new facts bearing on the case.
To some degree, it was logical for the AS Committee and Kelly to presume that the situation remained the same from week to week, particularly since Giano's confinement was based on past events that were not subject to change. However, eighteen months is a relatively long time for any situation to remain exactly the same, and one might expect the passage of so much time to have some impact on Giano's situation (for example, on his attitude or on his status in the prison community). Yet, there is no indication that the Committee or Kelly considered or inquired about any possible change in the factors bearing on Giano's AS confinement.
Also, it appears that neither Kelly nor the AS Committee ever considered critical information concerning the stabbing despite the fact that the information was readily available during most of Giano's time in AS. This available information would have revealed that Giano's assailant had been identified and that Giano had given Shawangunk officials an explanation as to why the assault occurred. Furthermore, Kelly or the Committee could have learned that in December 1988, Algier submitted Giano's request for permission to correspond with a Shawangunk inmate (Pltf's Exh. 25). Shawangunk denied the request in part because Giano's "assailant is still housed here." ( Id.) On December 27, Algier sent Giano a memo stating that the correspondence request was denied "due to security reasons" (pltf's Exh. 32). Algier admitted at trial that he must have read Shawangunk's response before sending the memo and that, as a result, he knew by December 27, 1988, that Giano's assailant had been identified (T. 314). However, he never relayed this information to the AS Committee (T. 324). Also, although Shawangunk's response was part of Giano's guidance unit file which Committee members claimed to review on a regular basis (T. 299-301, 329, 355-56, 371), there is no indication that the Committee ever discussed the response or the fact that Giano's assailant had been identified (T. 314). Similarly, the Committee never requested information about the stabbing from Shawangunk even though it was readily available (T. 318, 320). Kelly also never contacted or asked his staff to contact Shawangunk (T. 173) and admitted at trial that he still did not know any of the circumstances related to the stabbing (T. 202).
D. Meaningful Review
Due process rights are limited in the prison context, see Wolff v. McDonnell, 418 U.S. 539, 560 (1974), and decisions of prison officials should be afforded great deference. See Bell v. Wolfish, 441 U.S. 520, 547 (1979). In the context of AS, due process "requires only an informal nonadversary review of evidence." Hewitt, 459 U.S. at 474. As the Supreme Court explained in Hewitt:
[A] prison's internal security is peculiarly a matter normally left to the discretion of prison administrators. In assessing the seriousness of a threat to institutional security, prison administrators necessarily draw on more than the specific facts surrounding a particular incident; instead, they must consider the character of the inmates confined in the institution, recent and longstanding relations between prisoners and guards, prisoners interse, and the like. In the volatile atmosphere of a prison, an inmate easily may constitute an unacceptable threat to the safety of other prisoners and guards even if he himself has committed no misconduct; rumor, reputation, and even more imponderable factors may suffice to spark potentially disastrous incidents. The judgment of prison officials in this context, like that of those making parole decisions, turns largely on purely subjective evaluations and on predictions of future behavior; indeed, the administrators must predict not just one inmate's future actions, as in parole, but those of an entire institution. Owing to the central role of these types of intuitive judgments, a decision that an inmate or group of inmates represents a threat to the institution's security would not be appreciably fostered by the trial-type procedural safeguards suggested by respondent.Id. at 474 (internal citations omitted).
Therefore, in reviewing a prisoner's AS status, due process does not require that prison officials hold a formal hearing in which the prisoner is permitted to testify, submit evidence, call witnesses, or confront his accusers. Further, there need not be a finding that the prisoner committed a misdeed in order to support the decision to confine him to AS. Hewitt, 459 U.S. at 476. However:
An inmate must merely receive some notice of the charges against him and an opportunity to present his views to the prison official charged with deciding whether to transfer him to [AS]. Ordinarily, a written statement by the inmate will accomplish this purpose, although prison officials may find it more useful to permit oral presentations in cases where they believe a written statement would be ineffective. So long as this occurs, and the decisionmaker reviews the charges and then-available evidence against the prisoner, the Due Process Clause is satisfied.Id.
Due process requirements do not cease upon the initial review of an inmate's transfer to AS. Unlike disciplinary SHU confinement, which is for a defined period of time, AS lasts until the Superintendent orders the inmate's release. Given the indefinite duration of AS, "[p]rison officials must engage in some sort of periodic review of the confinement of such inmates." Hewitt, 459 U.S. at 477 n. 9. Since the prison officials in Hewitt employed AS only as a temporary basis for confining the inmate in SHU, pending investigation of misbehavior charges, 459 U.S. at 463-65, the Supreme Court did not elaborate on the procedures required in periodic review of long-term AS cases. However, the basic parameters of what is required in such a review is evident.
Since initial review of AS confinement can be informal and non-adversarial, subsequent reviews do not require procedures such as the presence of the accused or live testimony. Also, the reviewer need not always consider new information, since the original reasons for placing the inmate in AS may continue to be compelling. However, AS may not be used as a pretext for confining an inmate in SHU when he no longer presents a threat to the security of the facility. See Hewitt, 459 U.S. at 477 n. 9. Thus, the decisionmaker must determine if the reason for AS confinement remains valid and must review "then-available" evidence. Id. at 476. In this context, "then" must be taken to refer to the point at which review occurs. Therefore, if new relevant evidence becomes available following initial review of the inmate's AS confinement, the decisionmaker is obligated to consider that evidence.
Also, the inmate is entitled to notice of the reason for his confinement and an opportunity to respond to that reason. Id. So long as the reason does not change, the inmate need not be informed each time his confinement is reviewed. However, if the reason for AS confinement changes, the inmate should be informed of the new reason and given an opportunity to respond to that reason. As the Second Circuit recently held in a related context, "[w]hen procedural due process requires an explanation of the ground for termination of a liberty interest, it requires a statement of the actual ground, and if an initial ground is changed, the person deprived of liberty is entitled to know the new ground." Kim v. Hurston, 182 F.3d 113, 119 (2d Cir. 1999).
Hewitt presumed that the review would be conducted by "the prison official charged with deciding" whether to maintain the inmate in AS. 459 U.S. at 476. Prison facilities, like those in New York, may delegate the responsibility of reviewing relevant information and recommending whether to release an inmate from AS. However, Hewitt requires that the decision-making official base the decision on the available evidence and on a rationale consistent with the defined function of AS.
Giano does not contest defendants' assertion that the Attica AS Committee met weekly and forwarded a memo to Superintendent Kelly which recommended that he be retained in AS. However, Giano argues that the Committee meetings and memoranda were a pro forma exercise, in which no meaningful consideration of his status ever took place. As this court noted in its prior decision, "simply because reviews are held on a weekly basis does not ensure that the reviews are meaningful." Giano, 869 F. Supp. at 150. This court identified:
Several things could have been done that would have illustrated that the defendants genuinely contemplated Giano's continued confinement without placing an undue burden upon the government. For example, inmates in disciplinary segregation status are provided with information regarding the reasons for and the length of their confinement. Giano could have been given this information. In addition, Giano could have been informed of the dates and results of his reviews. Furthermore, Giano could have been informed of what he needed to do to effectuate his efforts toward positive adjustment. Finally, after a specified period of time, perhaps Giano could have been given an opportunity to present information that would have shown that he is no longer a threat to the facility. If some or all of these suggestions are utilized, the Supreme Court's concern of administrative segregation being a pretext for indefinite confinement could be alleviated.Id. (internal citations omitted).
Defendants admit that they did not inform Giano of pending AS Committee meetings. Not only was Giano not permitted to appear before the Committee, but he also claims he was not given an opportunity to submit information to the Committee. For their part, defendants admit that there was no formal mechanism that would have enabled AS inmates to submit information to the Committee. However, defendants also point out that Hall, who chaired the AS Committee, made weekly rounds of SHU, and that Giano's correction counselor made SHU rounds more frequently. Defendants assert that Giano knew that Hall and his counselor were members of the AS Committee and could have requested that they convey relevant information to Committee meetings. However, although defendants acknowledge that Giano often discussed his AS status during rounds, they could not point to an instance in which staff actually provided the AS Committee with any information or statement from Giano. Thus, while the staff theoretically could have transmitted information from Giano to the Committee, this never actually occurred.
In addition, Giano did not regularly receive information regarding the Committee's recommendations. Although he occasionally received copies of the Committee's memoranda to Kelly, this was not done consistently, and defendants concede that the memoranda did not record the actual bases for the Committee's recommendations. Giano also was not notified of Kelly's determinations to continue his AS confinement or the reasons for Kelly's decisions. There is also no indication that Giano ever learned how much longer he was likely to remain in AS or what he could do to hasten his release from AS.
Other facts also suggest that the Committee's review of Giano's AS status was not meaningful. The Committee's memoranda, which are the only contemporaneous records of Committee deliberations, consistently stated a rationale that did not reflect the concerns expressed by Committee members at trial. For his part, Kelly never requested any additional information beyond that contained in the memoranda. Moreover, neither Kelly nor the Committee ever considered any information beyond what was available at the time of Giano's initial transfer to AS.
Perhaps most importantly, the rationale given in the memoranda, i.e., "the Shawangunk incidents," proved to be an unsupportable basis for keeping Giano in AS. Again, there were two incidents at Shawangunk which affected Giano's AS status: the mess hall disturbance and the stabbing. Defendants concede that Giano had no part in the disturbance. As for the stabbing, such an incident would typically be a basis for confining an inmate like Giano in protective custody, not in AS. Defendants contend that AS was proper for Giano because they did not know the identity of his assailant. Yet, defendants could have learned the assailant's identity simply by contacting Shawangunk. Had they done so, they would have learned that officials at Shawangunk knew who Giano's assailant was. Defendants also contend that they did not know why the assault occurred. However, an inquiry directed to Shawangunk officials would have also revealed that Giano had described the reasons for the assault to an official who testified at the assailant's disciplinary hearing. Records of that hearing were available to Attica officials upon request (T. 321). Given Giano's explanation for the assault which has not been contested and the fact that Ramsey was housed at a different facility than Giano, it is evident that a renewed attack on Giano was unlikely. The stabbing was, therefore, not an adequate basis for keeping Giano in AS.
It is not the role of this court to second-guess the Committee or Kelly's deliberations. However, this court must apply the minimal due process requirements set forth in Hewitt. Under Hewitt, defendants were required to consider whether there was a continued basis for confining Giano in AS based on information that was readily available. The court finds that they failed to do so. This court holds that defendants denied Giano due process by failing to review the basis for his AS confinement in a meaningful fashion.
III. Causation
This court's findings that Giano was denied his liberty and was denied due process are not sufficient to support an award of substantial damages. "[W]here a denial of due process has been followed by a liberty deprivation, unless the deprivation was caused by the violation the plaintiff is limited to nominal damages." Patterson v. Coughlin, 905 F.2d 564, 568 (2d Cir. 1990) (citing Carey v. Piphus, 435 U.S. 247, 263 (1978)).
In Patterson, the procedural violation involved a hearing officer's unjustified refusal to call two witnesses, who were no longer available. The court reasoned: "[I]f Patterson would have been found guilty of assault and confined to SHU even if his witnesses had been called, his confinement in SHU must be considered a justified deprivation of liberty, not a deprivation caused by the State's failure to permit him to call those witnesses. Patterson, 905 F.2d at 568.
Defendants argue that they would have continued Giano in AS regardless of the information available to them. This may be true. However, the standard is not what defendants would have decided; it is what an objective, neutral decision-maker would have decided. Defendants' adamant insistence that they would not have released Giano regardless of what they knew, and the ease with which they adjusted their after-the-fact rationale for Giano's confinement, suggest that they were far from neutral decision makers.
[A]n impartial decisionmaker is one who, inter alla, does not prejudge the evidence and who cannot say, with the utter certainty advanced by these defendants, how he would assess evidence he has not yet seen. See, e.g., Francis v. Coughlin, 891 F.2d 43, 46 (2d Cir. 1989) ("it would be improper for prison officials to decide the disposition of a case before it was heard"). Patterson, 905 F.2d at 570.
The question, then, is whether an impartial decisionmaker, reviewing the facts "then available," would have determined that Giano's release from AS would create a risk to the safety or security of the facility. The present case is distinguishable from Patterson in one significant respect. Giano does not and cannot argue that his initial confinement in AS was the result of procedural violations. That claim was dismissed on the basis of the state court's determination of Giano's Article 78 petition. One can presume that the decision that Giano remained a security risk was based on the facts that were ascertained at the time of his initial hearing, at least during his initial period of confinement in AS. Hewitt, 459 U.S. at 477 n. 9. However, it was incumbent on defendants to verify that the facts continued to support a finding that Giano was a security risk during the time he remained confined in AS. See Id.
Giano's initial placement in AS was based on the Shawangunk incidents and on his prior escape attempts. Giano had no involvement in the Shawangunk disturbance, and it should have been apparent by the time that Giano's correspondence request was denied that the stabbing was not attributable to factors that were likely to implicate security at Attica. Thus, neither of the Shawangunk incidents would justify maintaining Giano in AS. However, it is clear that Giano's prior escape attempts represented a serious threat to prison security. Superintendent Kelly testified that, to his knowledge, Giano is the only inmate ever to have escaped from Sing Sing. The Nassau County escape attempt involved the use of firearms and serious injury of a court officer. This court therefore finds that a reasonable decisionmaker would have continued Giano's AS confinement for a significant period of time, based on the prior escape attempts.
With the passage of time, however, it was incumbent on Attica officials to determine whether Giano remained a threat to security. Normally, the plaintiff bears the burden of showing that he would not have been confined to SHU but for the procedural violation. Patterson, 905 F.2d at 568 (citing McCann v. Coughlin, 698 F.2d 112, 126-27 (2d Cir. 1983)). However, that burden shifts where "the record's silence is the result of the State's violation of [plaintiff's] due process rights," since "it would be inappropriate to rule that the defendants should prevail where they have made proof impossible." Id. at 569, 570. In such a case, it is defendants' burden to show that the plaintiff would have been confined to SHU had there been no procedural violation. Id. (citing Memphis Community School District v. Stachura, 477 U.S. 299, 310-11 (1986)).
In the present case, as in Patterson, defendants' denial of due process effectively eliminated evidence which would and should have been available. Contemporaneous records are not a per se due process requirement. Ponte v. Real, 471 U.S. 491, 499 (1985), and the unavailability of such records is not a basis, in itself, for shifting the burden to defendants. However, because of the pro forma nature of the AS Committee memoranda, Kelly's failure to record reasons for his decisions, and defendants' failure to consider new information at any point in his confinement, it is virtually impossible to assess how the passage of time, or any other factor, affected the rationale for retaining Giano in AS. If defendants had maintained an accurate record of the factors underlying their decisions or if the memoranda had discussed facts other than the Shawangunk incidents, it might be possible to assess the continued viability of their belief that Giano's presence in GP would threaten security. There is, however, no contemporaneous record that would enable the Court to decide this question, and "the record's silence is the result of the State's violation of [Giano's] due process rights." Patterson, 905 F.2d at 569.
There is no bright line marking the date after which the justification for Giano's AS confinement became invalid. Given the seriousness of the escape incidents, it is reasonable to assume that his stay in AS would not likely be a short one. This court finds that is likely that a reasonable prison official would have continued Giano's confinement in AS for up to one year based on the threat to prison security implicated by his escape attempts. However, with the passage of one year in AS, it would also have been reasonable to investigate whether changed circumstances might warrant releasing Giano from AS. One year is quite a long time and, if nothing else, a one-year confinement in AS may have led Giano to reassess the implications of his behavior. Giano's AS confinement may have also functioned as a deterrent against other inmates cooperating with Giano on illegal schemes. In short, defendants have not met their burden of demonstrating that a reasonable decision maker would have maintained Giano in AS for more than one year, based on available evidence.
This court holds, therefore, that defendants' denial of due process did not cause a deprivation of Giano's liberty during the first year of his AS confinement, from October 6, 1988 until October 5, 1989. However, defendants' denial of due process did cause a deprivation of Giano's liberty from October 6, 1989, until his transfer from Attica on August 5, 1990.
IV. Personal Involvement
Defendants argue that former Commissioner Coughlin cannot be held liable since he was not personally involved in any deprivation of Giano's rights. 42 U.S.C. § 1983 provides for redress against state actors who "subject or cause to be subjected" individuals to deprivation of Constitutional rights, privileges or immunities. Liability under § 1983 can not be premised on a theory of respondeat superior, Monell v. Dept. of Soc. Seri. of City of New York, 436 U.S. 658, 692 (1978). In order to establish liability, a plaintiff must prove that the defendant was personally involved in the deprivation of his or her rights.
[A] defendant may be personally involved in a constitutional deprivation . . . in several ways. The defendant may have directly participated in the infraction. . . . A supervisory official, after learning of the violation through a report or appeal, may have failed to remedy the wrong. A supervisory official may be liable because he or she created a policy or custom under which unconstitutional practices occurred, or allowed such a policy or custom to continue. Lastly, a supervisory official may be personally liable if he or she was grossly negligent in managing subordinates who caused the unlawful condition or event.Williams v. Smith, 781 F.2d 319, 323-324 (2d Cir. 1986) (internal citations omitted).
Giano claims that Coughlin ordered his AS confinement in order to coerce him into disclosing information regarding the Shawangunk incidents. However, the evidence adduced at trial does not support this claim. Walker denied that Coughlin ordered Giano's placement in AS (T. 216). Kelly was not directly asked about Coughlin's involvement; however, his description of their telephone conference does not suggest that Coughlin ordered Giano's placement in AS (T. 166-67). Giano has not presented any credible evidence to support his claim that Coughlin ordered his placement in AS.
Nonetheless, it is clear that Coughlin took an active interest in Giano's case at the precise time that he was transferred to Attica and put in AS. Although Walker denied that Coughlin ordered Giano's SHU placement, he admitted that their telephone conference was "in reference to Mr. Giano and what we should do with him, where we should house him in Attica" (T. 211-12). Kelly and Walker confirmed that Coughlin asked whether Giano had any information about the Shawangunk disturbance and whether Giano disclosed the identity of the inmate who had stabbed him (T. 166, 212-13). Walker also testified that Coughlin directed him to ask Giano whether there was any connection between the disturbance and the stabbing (T. 212-13). It was shortly after Walker's inquiry that Giano was informed that he was on AS status (pltf's Exh. 16). Giano then wrote a letter to Coughlin disclaiming any connection between the stabbing and the disturbance and disclaiming any knowledge about the disturbance (Pltf's Exh. 1). Following his hearing, Giano wrote a second letter to Coughlin protesting his confinement in AS (pltf's Exh. 2). Giano wrote additional letters to Coughlin in January 1989 and again in March 1989 (pltf's Exhs. 6, 7). He began the second letter, "it has now been approximately 6 months since, by your orders, I have been in punitive segregation without any privileges or property . . . (Pltf's Exh. 7, at 1). Finally, in December 1989, Giano sent Coughlin a memorandum, again protesting his confinement in AS (pltf's Exh. 8). Giano also named Coughlin in the state court proceeding challenging his AS confinement. Giano v. Coughlin, 559 N.Y.S.2d 210 (1990).
Defendants deny that Coughlin read the letters from Giano, or that he was aware that he was a respondent in Giano's article 78 Petition. However, the evidence is compelling that Coughlin knew of Giano's continued confinement in AS. of course, knowledge that an inmate is confined in AS does not convert to knowledge that the inmate's due process rights have been violated. In Farmer v. Brennan, 511 U.S. 825, 834, (1994), the Supreme Court rejected a plaintiffs argument that an official may be held liable based on a finding that the official "should have known" of the constitutional violation. However, the court held that liability was established if the official "knows of and disregards an excessive risk" that the violation will occur. "[T]he official must both be aware of facts from which the inference could be drawn . . ., and he must also draw the inference. Farmer 511 U.S. at 837. Although Farmer was an Eighth Amendment and not a due process case, the standard enunciated in that case is applicable here.
Coughlin knew that DOCS regulations called for periodic review of the reasons for AS inmates' confinement. Indeed, Coughlin authorized the regulations that defined AS confinement, and defined the process for review of AS cases. He was thus quite aware that Giano would remain in AS until Kelly ordered his release. Coughlin also took an active interest in Giano's case at the time that he was admitted to AS, and suggested that Attica officials ask Giano about the Shawangunk incidents which were to be the basis for Giano's confinement. Also, Giano repeatedly complained to Coughlin that he remained in AS without any recourse, and sued him over this issue. This court therefore finds that Coughlin was aware of and disregarded a significant risk that Giano was being held in AS with no meaningful review of his status. McCann, 698 F.2d at 125 (2nd Cir. 1983); Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994). Coughlin may be held liable for violation of Giano's due process rights.
Defendants do not raise the issue of Hall's or Kelly's personal involvement. However, that issue merits a brief comment. As chair of the AS Committee, Hall had the responsibility for recommending whether to release Giano. However, the decision whether to do so rested with Superintendent Kelly. 7 N.Y.C.R.R. § 301.4(d). A recent decision in this district held that AS Committee members are not liable for damages when an inmate is improperly retained in AS, since they are not personally involved in the decision whether to release such inmates. Edmonson v. Coughlin, 21 F. Supp.2d 242, 256 (W.D.N Y 1998). That holding is logically compelling, and in most instances it is clear that members of the AS Committee should not be held liable. However, Giano has demonstrated that in fact the AS Committee determined his fate and that Hall effectively determined the outcome of Committee reviews. Kelly testified that he "always" approved AS Committee recommendations, and that he never requested additional information from the Committee (T. 186-89). Also, at least one Committee member testified that she could not recall a single instance in which a Committee member voted contrary to Hall (T. 349). Under these circumstances, this court finds that Hall possessed de facto power to determine whether Giano remained in AS, and that he can be held liable for deprivation of Giano's liberty without due process. Although Kelly claims that he "rubber stamped" Committee recommendations, he cannot unilaterally relieve himself of his obligation under the DOCS regulations to decide whether to release Giano. Edmonson, 21 F. Supp.2d at 256 n. 8. Kelly is therefore also liable for deprivation of Giano's liberty without due process.
Although the other defendants participated in the AS Committee meetings in which Giano's continued confinement in AS was discussed, their involvement appears to have been limited to concurring with the recommendation that Giano remain in AS. Since it was ultimately Kelly's decision whether to continue or release Giano from AS, and since none of the Committee members other that Hall can be considered to have effectively determined Giano's status, the other AS Committee members did not have personal involvement in the denial of Giano's liberty, and they cannot be held liable.
V. Qualified Immunity
To establish a defense of qualified immunity, a defendant must show that, at the time of the alleged violation, plaintiffs rights were not clearly established by law or, if clearly established, that defendants acted in a manner which it was objectively reasonable to believe did not violate plaintiffs rights. Anderson v. Creighton, 483 U.S. 635, 639-41 (1987); Williams v. Greifinger, 97 F.3d 699, 703 (2d Cir. 1996). In determining whether a particular right was clearly established at the time defendants acted, the court must examine "whether the right was defined with reasonable specificity; whether decisional law of the Supreme Court and [the Second Circuit] supports its existence; and whether, under preexisting law, a defendant official would have reasonably understood that his acts were unlawful." Rodriguez v. Phillips, 66 F.3d 470, 476 (citing Jermosen v. Smith, 945 F.2d 547, 550 (2d Cir. 1991)). The "very action in question" need not "have previously been held unlawful"; but "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson, 483 U.S. at 640. When a plaintiffs rights are clearly established, a defendant is entitled to qualified immunity if "a reasonable officer could have believed [his actions] to be lawful, in light of clearly established law and the information the [officer] possessed." Hunter v. Bryant, 502 U.S. 224, 227 (1991) (citing Anderson, 483 U.S. at 641). Whether a decision was reasonable is an "objective (albeit fact-specific) question," Anderson, 483 U.S. at 641, which should be resolved as a matter of law, unless material facts relevant to the determination are at issue. Id. at 228.
Defendants are correct in arguing that, "no authority has invalidated New York's procedure for periodic review" of AS confinements (Item 188 at 21-22). However, the thrust of Giano's claim is not that DOCS regulations define a constitutionally defective review process. Giano does not claim that he was entitled to appear, testify before, or submit evidence to the AS Committee, or that he was entitled to notice of Committee recommendations or of Kelly's determinations. Such procedural rights are inconsistent with Hewitt's mandate that the review process be "informal." 59 U.S. at 476. Admittedly, Hewitt did not define specific procedural components to the AS review process. However, the court in Hewitt did hold that AS "may not be used as a pretext for indefinite confinement of an inmate," and that prison officials must engage in periodic review of AS cases. 459 U.S. at 477 n. 9. Thus, Hewitt clearly established an AS inmate's right to periodic review of his confinement.
Although the Supreme Court chose not to define specific components of that review, it was clear that the review must be sufficient to "to dispel any notions that the confinement was a pretext." 459 U.S. at 478 n. 9. Thus, it was clearly established at the time of Giano's AS confinement that a pro forma review process which failed to take into consideration readily available information relevant to the reasons for the inmate's confinement amounted to a denial of due process. Nor can defendants claim that a reasonable officer would consider their actions reasonable in light of clearly established law and the information that defendants possessed. In sum, the court finds in Giano's favor because of defendants' failure to consider information available to them, their persistent invocation of a rote rationale, and their failure to inquire into the continuing validity of that rationale. In light of these findings, defendants are not entitled to qualified immunity.
VI. Damages
A. Compensatory Damages
The Prisoners' Litigation Reform Act, 42 U.S.C. § 1997e(e) provides: "[n]o Federal civil action shall be brought by a prisoner confined in a jail, prison, or other correctional facility for mental or emotional injury suffered while in custody without a prior showing of physical injury." Defendants argue that Giano is barred by the PLRA from claiming damages, since he has not proven that he suffered any physical injuries attributable to his AS confinement. Courts have reached contrary conclusions on whether § 1997e(e) was intended to apply to claims where physical injury is an unlikely consequence of the claimed violation, i.e., First Amendment claims. Cantrell v. Lightner, 143 F.3d 1210, 1213 n. 3 (9th Cir. 1998) (holding that § 1997e(e) does not apply to First Amendment claims); Robinson v. Page, 170 F.3d 747, 748-49 (7th Cir. 1998) (holding that claim of mental or emotional harm from SHU confinement would be barred by § 1997e(e), but other unspecified "forms" of injury may sustain damage claim). At least one district court in this circuit has held that § 1997e(e) bars damages in a due process claim such as Giano's. Wright v. Doe, 54 F. Supp.2d 199, 207 (S.D.N.Y. 1999).
The PLRA was enacted on April 26, 1996, after the events giving rise to Giano's claims and after he filed this action. Clearly, application of the Act to the present case would "attach new legal consequences to the events completed before the enactment of the PLRA by denying plaintiffs a cause of action where they once had a legally cognizable claim." Bolton v. Goord, 992 F. Supp. 604, 625 (S.D.N.Y. 1998) (internal quotations omitted) (citing, inter alia, Landgraf v. USI Film Products, 511 U.S. 244, 280-81 (1994)). Retroactive application of a statute is disfavored unless Congress has expressly stated its intention that the statute be applied retroactively. See Landgraf, 511 U.S. at 267-68; Lindh v. Murphy, 521 U.S. 320, 325 (1997).
In addressing other provisions of the PLRA that are not at issue in this case, the Second Circuit has held that the PLRA may not be applied retroactively to bar claims. See Salahudin v. Mead, 174 F.3d 271, 274 (2d Cir. 1999) (holding that § 1997e(a) exhaustion requirement is not retroactive); Blissett v. Casey, 147 F.3d 218, 220-221 (2d Cir. 1998) (holding that § 1997e(d) attorney fee provision does not apply retroactively to work performed prior to enactment of PLRA); Dumatef v. O'Keefe, 98 F.3d 22, (2d Cir. 1996) (holding that in forma pauperis provision, 28 U.S.C. § 1915, is not retroactive). In each case, the court cited Congress' failure to explicitly provide for retroactivity of the PLRA provisions.
Congress was equally silent as to the retroactivity of § 1997e(e). Although the Second Circuit has not ruled on this provision, district courts that have addressed the issue have consistently found that § 1997e(e) is not retroactive. Bolton, 992 F. Supp. at 625-26; Heisler v. Kralik, 981 F. Supp. 830, 837 n. 3 (S.D.N.Y. 1997); Harris v. Lord, 957 F. Supp. 471, 474 (S.D.N.Y. 1997). The Tenth Circuit has also found that courts should not apply § 1997e(e) retroactively. See Craig v. Eberly, 164 F.3d 490, 492-93 (10th Cir. 1998). This court therefore holds that § 1997e(e) does not apply retroactively, and that Giano need not prove physical injury in order to assert his damage claim.
"The evaluation of the injury suffered by a plaintiff . . ., is . . . a question of fact to be decided by the factfinder after trial." Patterson, 905 F.2d at 570. In the present case, the facts which bore on the Sandin issue — the extent and duration of the deprivations that Giano underwent — are also relevant to the question of damages. Calculation of such damages cannot be subjected to an "accountant's methodology," Sample v. Diecks, 885 F.2d 1099, 1112 (3rd Cir. 1989), and courts' assessments of damages attributable to SHU confinement have varied. However, the following citations suggest that a rate of between $80.00 and $100.00 per day of confinement is a reasonable measure of damages. U.S. ex rel. Larkins v. Oswald, 510 F.2d 583, 589 (2d Cir. 1975) ($80 per day); Maxwell v. Mason, 668 F.2d 361, 365 (8th Cir. 1981) ($100 per day); Charron v. Medium Security Institution, 730 F. Supp. 987 (E.D. Mo. 1989) ($100 per day); Patterson v. Coughlin, 722 F. Supp. 9, (W.D.N.Y. 1989), aff'd in part and rev'd in part, 905 F.2d 564 (2d Cir. 1990).
This court holds that Giano's damages should be calculated at a rate of $100.00 per day of AS confinement. This figure is based on comparison of the deprivations which Giano endured compared with the conditions that he would have encountered upon release from AS, and the cited cases are used as a guide only and not to define the measure of the damages owed to Giano.
Giano's AS confinement is attributable to defendants' due process violations beginning on October 6, 1989. However, Giano was not housed at Attica between September 15, 1989 and December 15, 1989, and between February 1, 1990 and March 10, 1990 (Stip. ¶ 7). Thus, the time that Giano spent in Attica's AS due to violation of his due process rights includes two periods: (1) from December 15, 1989 until January 31, 1990; and (2) from March 10, 1990 until August 5, 1990, when Giano was transferred from Attica. These two periods include a total of 194 days.8 Therefore, the damages attributable to denial of due process amount to $100.00 per day times 194 days, which amounts to a total of $19,400.00.
It must be stressed that the award of damages in this case is not for the purpose of rewarding a "good" plaintiff or of punishing "bad" defendants. Giano was properly convicted and punished, and his incarceration is not at issue in this case. Nor should the award of damages be taken to reflect a judgment regarding the propriety of Giano's actions prior to or following his incarceration. Rather, the award is intended to compensate Giano for deprivations that he endured due to violations of his right to due process. That right accrues to any prisoner regardless of his background or character. It must be stressed that the constitutional claim in this case is not for a "technical" violation, but implicates very serious and very real concerns. Giano spent over one year in Attica's SHU under very harsh conditions. His confinement was for an indefinite term, and his only hope for release from AS was premised on a meaningful review of the reasons for his AS confinement. Ironically, an inmate in disciplinary SHU is confined for a defined period of time based on a finding that he violated a prison rule, i.e., by assaulting another inmate. However, the same inmate could be placed in AS based on a mere suspicion that he violated a prison rule, so long as his presence in GP is deemed a threat to prison safety or security, and kept in AS indefinitely. In light of the circumstances in this action, the doctrine of due process reveals how important it is for prison officials to conduct periodic and meaningful reviews of the bases for inmates' confinement in AS.
B. Punitive Damages
Courts may award punitive damages in situations where a defendant's conduct is "willful or malicious," or where defendants have demonstrated "reckless intent" or "callous indifference." Memphis Community School District v. Stachura, 477 U.S. 299, 306 (1986). In the present case, the record establishes that defendants Coughlin, Kelly, and Hall acted carelessly with respect to Giano's status in AS, but does not demonstrate that they acted maliciously or willfully. Therefore, the court denies plaintiffs request for punitive damages.
CONCLUSION
For the reasons set forth herein, this court finds that defendants Coughlin, Kelly, and Hall are liable to plaintiff in the amount of $19,400.00 for the deprivation of his liberty without due process, and that plaintiffs claims against the remaining defendants must be dismissed. The Clerk is directed to enter judgment in this case accordingly.
So ordered.