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finding plaintiff on notice of nonexhaustion defense and noting that plaintiff "in his responsive papers implicitly concedes that these claims were not exhausted"
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No. 01 Civ. 11832 (JSR)(GWG)
December 19, 2002
REPORT AND RECOMMENDATION To the Hon. Jed S. Rakoff United States District Judge
Ray Mack, a prisoner currently in the custody of the Gowanda Correctional Facility, brings this action pro se pursuant to 42 U.S.C. § 1983. The defendants now move to dismiss pursuant to Fed R.Civ.P. 12(b)(6). For the following reasons, the motion should be granted.
I. BACKGROUND A. Facts Underlying Mack's Claims
For purposes of deciding the motion to dismiss, the facts as alleged in the complaint are assumed to be true.
On December 22, 1999, Mack was transferred from Elmira Correctional Facility to Green Haven Correctional Facility in apparent retaliation for his filing past grievances and lawsuits. Complaint, ¶¶ 19, 102. In January 2000, there was a dispute between the Department of Correctional Services and the prisoners at Green Haven, which amounted to a "strike" or "work slow down." Id., ¶ 20. As part of the dispute the inmates were on a hunger strike and advised Mack not to go to the "mess hall" and "eat chow." Id. Mack did not support the strike and wanted to eat. Id. On January 10, 2000, defendant Jones let Mack out of his cell so he could go 1 to the mess hall and eat. Id., ¶ 22. When he got there, however, defendant Lawler told him that "chow was over." Id. Mack then asked to see a supervisor, after which Lawler told him that he "kn[ew] how to deal with a wise guy." Id. Shortly thereafter, defendants Lawler, Keyser and "Doe" came to Mack's cell and beat him with their batons, kicked him, spit on him, and called him "racial names." Id., ¶¶ 23-27. During this assault, Mack did not "resist or threaten the officers in any fashion or break any prison rules." Id., ¶ 29. After the assault, Mack was taken to the infirmary where he received an "IV" and "treatment for his bruises and abrasions to his arm, legs, torso, face, and head." Id., ¶ 33. Mack was then taken by ambulance to the emergency room at St. Francis Hospital, where his right arm was found to be fractured and was placed in a cast. Id., ¶ 34. After spending twenty-four hours in observation in the prison infirmary, Mack was then transferred to "punitive segregation." Id., ¶¶ 35-36.
On January 13, 2000, the prison brought disciplinary charges against Mack based on the January 13 incident for assaulting staff, refusing a direct order, and "movement." Id., ¶ 37. On January 19, 2000, Mack was placed under "`Keeplock' confinement status." See id., ¶ 47. The charges against Mack ultimately were dismissed because a hearing was not timely held, see Disposition of Disciplinary Charges (reproduced as Mack's Affirmation, dated June 5, 2002 ("Mack June 5 Aff."), Ex. 1), and on January 29, 2000, Mack was released from "Keeplock" status. Complaint, ¶ 47.
On February 2, 2000, Mack was transferred back to Elmira. Id., ¶ 48. Defendants O'Connor and Bennett, among others, failed to provide the necessary medical treatment for his injuries. Id., ¶¶ 51-57, 59-62. In addition, defendant Dr. Yin diagnosed Mack as suffering from "sugar diabetes" and prescribed certain medication. Id., ¶ 58. After experiencing negative side 2 effects from the medication, he requested a second opinion on his diabetes diagnosis but his request was denied. Id., ¶¶ 58, 60.
Finally, defendants "Charles, D. Kelly and Doe" tampered with Mack's mail in retaliation for a lawsuit that Mack had filed earlier. Id., ¶ 65.
B. Mack's Claims and the Current Motion
On December 27, 2001, Mack filed this action against the defendants under 42 U.S.C. § 1983. He asserts that the attack on him violated the Eighth Amendment and constituted assault and battery under State law. Complaint, ¶¶ 96-97. He also claims that "John Doe['s] actions in conducting [Mack's] disciplinary hearing and defendant Artuz['s] actions in sustaining it" violated his Fourteenth Amendment due process rights; that defendants O'Connor, Yin and Bennett's failure to provide adequate medical care for him violated his Eighth Amendment rights; and that defendants Charles, Kelly and Doe's interference with his mail violated his rights under the First and Fourteenth Amendments. Id., ¶¶ 103-04; id. at 22.
By order dated December 27, 2001, the Court dismissed on statute of limitations grounds the claims against four additional defendants for separate incidents that occurred between September 3, 1996 and November 12, 1996. See Order of Partial Dismissal, dated December 27, 2001 (reproduced as Notice of Motion to Dismiss, dated May 31, 2002 ("Notice of Motion"), Ex. C).
On May 31, 2002, by notice of motion, the above-mentioned defendants ("the State defendants") moved to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. Among other things, the State defendants argued that Mack's complaint should be dismissed because he failed to exhaust his administrative remedies. On June 4, 2002, Mack filed an amended complaint, which the Court construed as supplementing the original complaint. See Order, dated June 4, 2002. In the amended complaint, Mack alleges that his due process rights were violated when he was designated as one of the Central Monitoring Cases ("CMC"). See Amend [sic] Complaint Pursuant to Rule 15(a), undated, ("Amended Complaint"), at 3-4. In addition, the amended complaint made allegations against defendant Sergeant Joseph Lattuga — allegations that derive from Mack's October 25, 1997 arrest for "pickpocketing." Amended Complaint, ¶ 2. Specifically, Mack alleges that after he was brought to the police station and charged with larceny he was falsely charged with two counts of felony assault on Officer Lattuga. Id. Mack further claims that Officer Lattuga lied before the grand jury about sustaining and seeking treatment for his injuries. Id., ¶¶ 2-3. Mack alleges that the "malicious prosecution and other aforementioned violations described herein" violated both his state and federal due process rights. Id., ¶ 3.
On June 28, 2002, the State defendants supplemented their motion to dismiss and moved to dismiss the amended complaint. Subsequently, on October 24, 2002, Officer Lattuga filed a motion to dismiss the amended complaint. Both motions are now before the Court.
II. DISCUSSION A. Law Governing Motions to Dismiss under Fed.R.Civ.P. 12(b)(6)
A court should dismiss a complaint pursuant to Rule 12(b)(6) if it appears beyond doubt that the plaintiff can prove no set of facts in support of the complaint that would entitle the plaintiff to relief. See, e.g., Strougo v. Bassini, 282 F.3d 162, 167 (2d Cir. 2002); King v. Simpson, 189 F.3d 284, 286-87 (2d Cir. 1999). The Court must accept all factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. See, e.g., Koppel v. 4987 Corp., 167 F.3d 125, 130 (2d Cir. 1999); Jaghory v. New York State Dep't of Educ., 131 F.3d 326, 329 (2d Cir. 1997). The issue is not whether the plaintiff will ultimately 4 prevail but whether the plaintiff is entitled to offer evidence to support his or her claims. See, e.g., Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995), cert. denied, 519 U.S. 808 (1996). The Court must "confine its consideration `to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken.'" Leonard F. v. Israel Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999) (quoting Allen v. WestPoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991)); accord Hayden v. County of Nassau, 180 F.3d 42, 54 (2d Cir. 1999).
Moreover, pleadings must be construed liberally when considering motions to dismiss the claims of a plaintiff proceeding pro se. See, e.g., Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (a pro se complaint may not be dismissed under Rule 12(b)(6) unless "it appears `beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief'") (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Lerman v. Board of Elections, 232 F.3d 135, 140 (2d Cir. 2000), cert. denied, 533 U.S. 915 (2001); Flaherty v. Lang, 199 F.3d 607, 612 (2d Cir. 1999).
B. Section 1983 Claims
Mack brings his claims under 42 U.S.C. § 1983. Section 1983 provides:
[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
To state a claim under 42 U.S.C. § 1983, a plaintiff "must allege (1) that the conduct complained of was committed by a person acting under color of state law, and (2) that such conduct deprived 5 the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States." Dwyer v. Regan, 777 F.2d 825, 828 (2d Cir. 1985), modified, 793 F.2d 457 (2d Cir. 1986); accord Gomez v. Toledo, 446 U.S. 635, 640 (1980); Finley v. Giacobbe, 79 F.3d 1285, 1296 (2d Cir. 1996). Section 1983 does not in and of itself create any substantive rights; rather the plaintiff must demonstrate a violation of an independent federal constitutional or statutory right. See, e.g., Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617-18 (1979). As noted, Mack claims violations of his rights under the First, Eighth, and Fourteenth Amendments. The defendants do not dispute that the allegations of the complaint demonstrate that they were acting under color of state law.
C. Exhaustion
Under the Prison Litigation Reform Act ("PLRA"), 110 Stat. 1321-73, as amended, 42 U.S.C. § 1997e(a), "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." This means the prisoner "must pursue his challenge to the conditions in question through the highest level of administrative review prior to filing his suit." Flanagan v. Maly, 2002 WL 122921, at *2 (S.D.N.Y. Jan. 29, 2002); see also Porter v. Nussle, 534 U.S. 516, 524 (2002) ("All `available' remedies must now be exhausted"). While section 1997 speaks only of "prison conditions," the Supreme Court has clarified that "PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether 6 they allege excessive force or some other wrong." Nussle, 534 U.S. at 532.
"[T]he broad exhaustion requirement announced in Nussle applies with full force" to a litigant, such as Mack, who brought suit prior to the date of its decision. Espinal v. Goord, 2002 WL 1585549, at *2 n. 3 (S.D.N.Y. July 17, 2002); see generally Harper v. Virginia Dep't of Taxation, 509 U.S. 86, 97 (1993) ("When [the Supreme] Court applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate [the] announcement of the rule.").
7 N.Y.C.R.R. § 701 outlines the Inmate Grievance Program under which New York prison inmates may file grievances concerning prison life. First, an inmate must file a complaint with the Inmate Grievance Resolution Committee ("IGRC"). 7 N.Y.C.R.R. § 701.7(a). Next, the inmate may appeal the IGRC action to the superintendent of the facility. Id. at § 701.7(b). Finally, after receiving a response from the superintendent, the prisoner may appeal to the Central Office Review Committee ("CORC"). Id. at § 701.7(c). "A prisoner has not exhausted his administrative remedies until he goes through all three levels of the grievance procedure." Hemphill v. New York, 198 F. Supp.2d 546, 548 (S.D.N.Y. 2002). Mack's claims were grievable under the prison regulations. See 7 N.Y.C.R.R. § 701.2(a) (permitting grievances for any "complaint about the substance or application of any written or unwritten policy, regulation, procedure or rule of the Department of Correctional Services or any of its program units, or the lack of a policy, regulation, procedure or rule"); see also 7 N.Y.C.R.R. § 701.11 (describing special expedited grievance process for "[e]mployee misconduct meant to . . . harm an inmate"). As was noted in Flanagan, "New York permits inmates to file internal grievances as to virtually any issue affecting their confinement." 2002 WL 122921, at *1.
1. Exhaustion of Medical Care, Assault and Mail Interference Claims
Mack does not allege that he filed any grievance relating to the denial of medical care. He does allege, however, that he filed complaints with the prison with respect to the assault and mail interference claims. In fact, he submitted documentary evidence so indicating. See Affidavit In Support of Plaintiff [sic] 1983 Civil Rights Complaint, dated June 24, 2002 ("Mack June 24 Aff."), at ¶ 5, Exs. A(1), A(2). Mack does not claim to have appealed these grievances to the CORC, however. The director of the New York State Inmate Grievance program has submitted an affidavit indicating that Mack's complaints could have been brought under the state grievance program and, to the extent such complaints were made, they were not appealed to the CORC. See Affidavit in Support of Defendant's [sic] Motion to Dismiss, dated May 29, 2002 (reproduced as Notice of Motion, Ex. B), at ¶¶ 2, 6.
Mack in his responsive papers implicitly concedes that these claims were not exhausted. See Mack June 24 Aff., at ¶ 5; Mack June 5 Aff., at ¶ 2. Instead, he contends that "before a court can order an inmate to exhaust a state grievance procedure, the court must first determine that the procedure meets the minimum standards created by the statute," unless "the U.S. Attorney General's Office has already certified that the state's grievance procedure meets the standards." Mack June 5 Aff., at ¶ 3. Mack's argument might have had some support in the law had it been made prior to the enactment of the PLRA. The statute applicable prior to the PLRA allowed courts to "continue [a prisoner § 1983] case" for up to 180 days in order to require exhaustion of administrative remedies "if the court believes that such a requirement would be appropriate and in the interests of justice." 42 U.S.C. § 1997e(a)(1) (1994). The former section 1997e also required the Attorney General to certify that the administrative remedies were "in substantial compliance with the minimum acceptable standards promulgated under subsection (b)" or were "otherwise fair and effective." The former section 1997(e)(b)(1) directed the Attorney General, following consultation with experts in the field, to promulgate "minimum standards for the development and implementation of a plain, speedy, and effective system for the resolution of grievances of adults confined in any jail, prison, or other correctional facility." With the enactment of the PLRA in 1996, however, Congress deleted these provisions, eliminating the certification requirement and the requirement that administrative remedies meet "minimum acceptable standards" or otherwise be "fair and effective." See 42 U.S.C. § 1997e; Rumbles v. Hill, 182 F.3d 1064, 1066 (9th Cir. 1999), cert. denied, 528 U.S. 1074 (2000). The PLRA also eliminated the district court's discretion to stay a case in order to require litigants to exhaust their administrative remedies.
Even in the absence of this concession, some case law would impose a duty on Mack to allege exhaustion in his complaint. See, e.g., Fields v. Brown, 2002 WL 31202763, at *3 (S.D.N.Y. Oct. 1, 2002) (holding that "[a] plaintiff must allege in his complaint that he has exhausted his administrative remedies and attach the appropriate documentation, including administrative decisions, demonstrating exhaustion"). In any event, Mack was on notice that the defendants were raising this ground as a defense and Mack directly addressed it in his subsequent filings.
Thus, in Booth v. Churner, 532 U.S. 731 (2001), the Court held that a prisoner was required to exhaust all administrative remedies even though the administrative procedure did not provide the relief the prisoner was seeking. Id. at 740-41. In Nussle, the Court in discussing the changes made by the PLRA noted that "[a]ll `available' remedies must now be exhausted; those remedies need not meet federal standards, nor must they be `plain, speedy, and effective.'" 534 U.S. at 524 (quoting former 42 U.S.C. § 1997(e)(a)(1) (1994)). Accordingly, in light of both the changes to the statute and the Supreme Court rulings interpreting these changes, Mack's argument fails.
Mack also claims that he did not receive a copy of a document notifying him of the 9 dismissal of the disciplinary charges until over two years after the alleged assault. See Mack June 5 Aff., at ¶ 2. He alleges that had he received the disposition of these charges earlier, he could have exhausted all of his administrative remedies. See id. The disposition of a disciplinary hearing based on the same underlying facts as the grievance, however, is not a prerequisite to filing a grievance under the Department of Corrections grievance procedures. See 7 N.Y.C.C.R. § 701. Indeed, because both proceedings must be instituted within fourteen days of the alleged incident, such an immediate disposition is unlikely. Nor did the filing of such a disciplinary action preclude Mack from filing a grievance. See, e.g., Gray v. Murry, 2001 WL 826088, at *3 (S.D.N.Y. July 19, 2001).
Reading the complaint broadly, Mack may be arguing that the Department of Corrections' failure to respond to his grievance complaints should excuse the exhaustion requirement. See, e.g., Mack June 24 Aff., at ¶ 5. The Inmate Grievance Program regulations provide, however, that "matters not decided within the time limits" for the initial step of review (approximately two weeks) "may be appealed to the next step." 7 N.Y.C.R.R. § 701.8. Therefore, accepting Mack's allegations that the IGRC failed to act on his complaint, he could have appealed his grievances to the superintendent and finally to the CORC. By not doing so, he failed to comply with section 1997's exhaustion requirement. See Reyes v. Punzal, 206 F. Supp.2d 431, 433 (W.D.N.Y. 2002) ("[E]ven if plaintiff received no response to his grievance, he could have appealed it to the next level. By not doing so, plaintiff failed to exhaust his administrative remedies as required by the PLRA as a prerequisite to filing this lawsuit."); Burns v. Moore, 2002 WL 91607, at *8 (S.D.N.Y. Jan. 24, 2002) ("[E]ven if Plaintiff received no response to his initial grievance, Plaintiff could have sought the next level of review, in this case, to the prison superintendent.").
Nor could Mack argue that the dismissal of his disciplinary proceeding excuses the exhaustion requirement. Even when a disciplinary decision is appealed to the highest level, its exhaustion does not constitute the exhaustion of remedies with respect to a grievance based on the same underlying facts. See, e.g., Benjamin v. Goord, 2002 WL 1586880, at *2 (S.D.N.Y. July 17, 2002) (citing Cherry v. Selsky, 2000 WL 943436, at *7 (S.D.N.Y. July 7, 2000)). Thus, the prisoner must file a grievance with respect to those underlying facts.
Mack has put forth no other argument that would excuse his failure to exhaust. Cf. O'Connor v. Featherston, 2002 WL 818085, at *2 (S.D.N.Y. Apr. 29, 2002) (noting limited circumstances in which courts have excused a failure to exhaust administrative remedies); see also Booth, 532 U.S. at 741 n. ¶ ("we will not read futility or other exceptions into statutory exhaustion requirements where Congress has provided otherwise"). Because Mack has not exhausted his administrative remedies with respect to the assault, medical care, and mail claims, these claims must be dismissed without prejudice. See Morales v. Mackalm, 278 F.3d 126, 126 (2d Cir. 2002) (dismissal for failure to exhaust should be without prejudice to refiling following exhaustion).
2. Exhaustion of Claims Relating to CMC Status and "Keeplock"
Mack has alleged, however, that he exhausted his administrative remedies with respect to his claim that his due process rights were denied when he was placed on CMC status. In New York, a prisoner may appeal a CMC designation "at any time during his incarceration" to the inspector general. 7 N.Y.C.R.R. § 1000.5. A prisoner may also appeal the inspector general's decision to the Office of Counsel. Id. The exhibits attached to Mack's opposition to the motion to dismiss indicate that he sought review of his CMC designation by both the inspector general 11 and the Office of Counsel — with both upholding the designation. See Mack June 24 Aff., Exs. B(2), B(6). Accordingly, this claim is exhausted.
With respect to Mack's claim that his due process rights were violated when he was placed in "keeplock" for ten days following the assault, Mack does not assert that he exhausted this claim. Nonetheless, at least one court has noted that it would be "absurd" to require an inmate complaining of due process violations in his disciplinary hearing to file a separate grievance regarding the due process claim. Flanagan, 2002 WL 122921, at *2. Rather, the Flanagan court stated, the prisoner exhausts his remedies by presenting his objections in the administrative appeals process. Id. Here, because the case was dismissed (in Mack's favor), there would have been no reason to appeal the dismissal. It also does not appear that this due process complaint would be grievable. 7 N.Y.C.R.R. 701.3(e)(1) ("The individual decisions or dispositions of any current or subsequent program or procedure having a written appeal mechanism which extends review to outside the facility shall be considered nongrievable."); see also Gray, 2001 WL 826088, at *3 ("a grievance directly challenging the decision or proceeding on the disciplinary charge would not be grievable"). While the fact that this proceeding was dismissed might warrant a different rule on exhaustion, the Court will assume without deciding that section 1997 does not require Mack to have grieved his placement in keeplock.
D. CMC Due Process Claim
Mack claims his due process rights were violated because he was placed on CMC status despite there being "no evidence presented to support such conviction." Amended Complaint, ¶ 3. Mack does not allege what it means to be on CMC status. Department of Correction regulations explain that the CMC designation "identifies inmates who, by nature of their crime or 12 status, require special evaluation and tracking of their movement through the correctional system." 7 N.Y.C.R.R. § 1000.1(b). The CMC designation is "designed to allow the DOC to be aware of the housing, case status, and transport of inmates who require special monitoring — inmates, for example, with a history of escapes or assaultive behavior, with inordinate notoriety, or who are in witness protection programs." Adams v. Galletta, 1999 WL 959368, at *2 (S.D.N.Y. Oct. 19, 1999).
In evaluating whether Mack's placement on CMC status violated his due process rights, the first issue that must be determined is whether Mack's prior non-CMC status is "a property or liberty interest protected by the Constitution." Perry v. McDonald, 280 F.3d 159, 173 (2d Cir. 2001) (citation and internal quotation marks omitted). If Mack had such an interest, the Court "must then consider whether the government deprived [him] of that interest without due process." Narumanchi v. Board of Trs. of the Conn. State Univ., 850 F.2d 70, 72 (2d Cir. 1988). "Liberty interests protected by the Fourteenth Amendment may arise from two sources — the Due Process Clause itself and the laws of the States." Hewitt v. Helms, 459 U.S. 460, 466 (1983).
In Pugliese v. Nelson, 617 F.2d 916 (2d Cir. 1980), federal prisoners claimed a due process violation when they were placed on CMC status. The federal CMC designation appears similar to the New York State designation in that it designates prisoners who need "special management" because they require special protection, are disruptive or assaultive, or should be separated from the general population for other reasons. Id. at 918. As Pugliese notes, such a designation "could hinder or preclude a prisoner in obtaining social furloughs, work releases, participation in community activities, release to halfway houses and transfers to other correctional institutions." Id. Nonetheless, Pugliese held that "a prisoner's mere expectation of 13 benefits associated with non-CMC status does not amount to a statutory or constitutional entitlement sufficient to trigger due process protections." Id. at 925. Because the prisoners in Pugliese failed "to demonstrate the existence of a liberty interest entitled to protection under the Fifth Amendment's Due Process Clause," their due process claim failed. Id. at 925-26.
Consistent with Pugliese, one district court has found the New York state prison directives regarding CMC status to be similar "in all material respects" to those of the federal prison system in Pugliese, and held that the New York State CMC designation is not a deprivation of a liberty interest triggering due process considerations. Majid v. Malone, 1996 WL 134756, at *3 (S.D.N.Y. Mar. 26, 1996); accord Adams v. Galletta, 1999 WL 959368, at *4 (S.D.N.Y. Oct. 19, 1999) (CMC designation for pretrial detainee not a deprivation of liberty interest). The Court agrees with this conclusion. By instituting the CMC program, the state has not created a liberty interest in avoiding this designation and therefore Mack's CMC due process claim must be dismissed.
E. Keeplock Due Process Claim
Construing his complaint liberally, Mack claims that his due process rights were violated when he was kept for "10 days of unreasonable confinement" under keeplock status without having had an opportunity to rebut the assault charges that led to his placement there — charges that were eventually dismissed. Complaint, ¶ 47; Mack June 5 Aff., at ¶ 2, Ex. 1. Mack fails to specify the nature of this confinement or explain how it differs from the ordinary confinement experienced by a prisoner.
Although Mack asserts he was confined in keeplock for 10 days, the defendants state his confinement lasted from January 10 to January 29, 2000, a period of 19 days. See Memorandum of Law in Support of Defendants' Motion to Dismiss, dated May 31, 2002, at 16 n. 14. Assuming this to be true, the addition of 9 days to Mack's confinement does not alter the Court's analysis.
In evaluating an inmate's procedural due process claim with respect to confinement within prison, a court must consider "`(1) whether the plaintiff had a protected liberty interest in not being confined . . . and, if so, (2) whether the deprivation of that liberty interest occurred without due process of law.'" Tellier v. Fields, 280 F.3d 69, 79-80 (2d Cir. 2000) (quoting Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir. 1997)). An inmate has a protected liberty interest in not being confined only if "the deprivation . . . is atypical and significant and the state has created the liberty interest by statute or regulation." Tellier, 280 F.3d at 80 (quoting Frazier v. Coughlin, 81 F.3d 313, 317 (2d Cir. 1996)).
Whether a particular confinement "imposes [an] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life," Sandin v. Conner, 515 U.S. 472, 484 (1995), will involve factual determinations. Tellier, 280 F.3d at 80. However, "the ultimate issue of atypicality is one of law." Sealey v. Giltner, 197 F.3d 578, 585 (2d Cir. 1999). Among the factors to be considered are "(1) the effect of disciplinary action on the length of prison confinement; (2) the extent to which the conditions of the disciplinary segregation differ from other routine prison conditions; and (3) the duration of the disciplinary segregation imposed compared to discretionary confinement." Wright v. Coughlin, 132 F.3d 133, 136 (2d Cir. 1998) (citing Sandin, 515 U.S. at 484).
In Mack's case, his punishment was not "atypical and significant." First, because the disciplinary proceeding that led to this confinement was dismissed, the keeplock confinement cannot adversely affect the length of his prison sentence. Second, Mack has not alleged how keeplock differs from normal confinement. Thus, there is no factual predicate from which it 15 could be concluded that his confinement was "atypical and significant." See Baskerville v. Blot, 224 F. Supp.2d 723, 736 (S.D.N.Y. 2002) (keeplock not "atypical and significant" where plaintiff failed to allege that confinement was "unusual" or represented a "`dramatic departure' from the basic conditions of his sentence"). In any event, case law reflects that a New York State prisoner in keeplock has the same visitation rights as other inmates, may retain his personal property, has access to books and periodicals from the library, and is afforded one hour of exercise each day. Gayle v. Keane, 1998 WL 187862, at *5 (S.D.N.Y. Apr. 21, 1998). Keeplock confinement differs from normal confinement in two significant ways: the inmate is (1) physically isolated from the rest of the population and (2) misses up to three hours of inmate programs a week. Id. Even assuming these negative consequences applied in Mack's case, these differences from normal confinement — without more — do not amount to an atypical and significant hardship. See Rodriguez v. McGinnis, 1 F. Supp.2d 244, 245 (S.D.N.Y. 1998) (keeplock not "atypical and significant" where confinement did not involve "any unusual conditions such as extended deprivation of exercise, restricted opportunities to attend religious services, or other such circumstances").
Further, the length of Mack's confinement does not support the finding of a constitutional deprivation. Courts have routinely held that longer durations of time in segregation experienced by prisoners did not implicate a liberty interest. See Sandin, 515 U.S. at 472 (30 days in disciplinary segregation not atypical and significant); accord Sealey v. Giltner, 197 F.3d 578 (2d Cir. 1999) (101 days in segregated housing unit ("SHU")); Frazier, 81 F.3d at 313 (12 days in SHU pending hearing). "Indeed, the post-Sandin decisions in this Circuit are unanimous that keeplock or SHU confinement of 60 days [or] less in New York prisons is not an 16 `atypical or significant hardship.'" Jackson v. New York Dept. of Corr. Svcs., 994 F. Supp. 219, 223 (S.D.N.Y. 1998) (13 day keeplock confinement in New York prison) (citation omitted); accord Gayle, 1998 WL 187862 (60 days); McIntosh v. Daddario, 1998 WL 118156 (S.D.N.Y. Mar. 17, 1998) (45 days); Jackson v. New York Dept. of Corr. Svcs., 994 F. Supp. 219 (S.D.N.Y. 1998) (13 days); Nicholas v. Remillard, 1997 WL 711385 (N.D.N.Y. Nov.13, 1997) (25 days); Schmelzer v. Norfleet, 903 F. Supp. 632 (S.D.N.Y. 1995) (11 days). Significantly, courts have found longer confinements in New York's SHU, which entails a greater loss of privileges than keeplock, "generally does not impose `atypical and significant hardship' because it remains within the normal range of prison custody." Trice v. Clark, 1996 WL 257578, at *3 (S.D.N.Y. May 16, 1996) (150 days); see also Williams v. Goord, 111 F. Supp.2d 280 (S.D.N.Y. 2000) (75 days). Because Mack's confinement in keeplock for either 10 or 19 days cannot be considered an "atypical and significant hardship," no liberty interest was implicated and Mack's due process rights were not violated.
F. Qualified Immunity
Because Mack's CMC and Keeplock claims do not constitute a due process violation, it is unnecessary to reach the State defendants' argument that they would be shielded from liability because they enjoy qualified immunity for their actions.
G. Claim against Sergeant Lattuga
Mack alleges that he was "framed" for assaulting Officer Lattuga and therefore his imprisonment on the assault charge is unconstitutional. Amended Complaint, ¶¶ 2-3. Construed as favorably as possible to Mack, he appears to be alleging claims under section 1983 and state law for false arrest and malicious prosecution.
The Second Circuit has made clear that claims for malicious prosecution and false arrest under section 1983 require the plaintiff to prove that the criminal proceedings underlying the offense "terminated in some manner indicating that the person was not guilty of the offense charged." Singleton v. City of New York, 632 F.2d 185, 194-95 (2d Cir. 1980), cert. denied, 450 U.S. 920 (1981) (malicious prosecution); Roesch v. Otarola, 980 F.2d 850, 853-54 (2d Cir. 1992) (extending Singleton to claims of false arrest). No federal claim can exist absent such proof. Singleton, 632 F.2d at 195. "To hold otherwise would permit a defendant to relitigate the issue of probable cause by way of a § 1983 action, despite the state court's determination of that issue against him after full and fair consideration of the evidence, thus posing the prospect of harassment, waste and endless litigation, contrary to principles of federalism." Id.; see also Heck v. Humphrey, 512 U.S. 477, 486-87 (1994) (if "a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence," no claim is available under section 1983 unless the prisoner can demonstrate that the conviction or sentence had previously been invalidated).
Mack has not alleged that the underlying criminal assault charges were dismissed in his favor. Indeed, Mack has provided documents to the Court showing he was convicted of this offense and arguing that this conviction should be overturned. See Memorandum of Law in Support of Plaintiff's Amended Complaint, dated November 7, 2002, at 2, 9; see also Certificate of Disposition (reproduced as Notice of Motion, dated October 24, 2002, Ex. A). Accordingly, any claim for malicious prosecution and/or false arrest cannot stand.
By Order dated December 3, 2002, the Court instructed Mack that if he wishes to challenge his judgment of conviction in federal court, he must file a petition for writ of habeas corpus.
H. Battery Claim
Because the Court recommends that all of Mack's federal claims be dismissed, any claims under state law for battery, false arrest or malicious prosecution should be dismissed as well. See, e.g., In re Merrill Lynch Ltd. P'ships Litig., 154 F.3d 56, 61 (2d Cir. 1998) (district court should decline to exercise supplemental jurisdiction over state law claims when it has dismissed all claims over which it has original jurisdiction); see also 28 U.S.C. § 1367(c).
III. CONCLUSION
The defendants' motion to dismiss should be granted. The complaint should be dismissed without prejudice, except that Mack's claim that his due process rights were violated when he was placed in "keeplock" and on "CMC" status should be dismissed with prejudice.