Opinion
No. 00-CV-6299
November 5, 2001
DECISION AND ORDER
This is an action pursuant to 42 U.S.C. § 1983, in which the plaintiff, an inmate at Lakeview Shock Incarceration Correctional Facility, alleges that defendants violated his right to procedural due process under the United States Constitution, in connection with a prison disciplinary hearing. Now before the Court is defendants' Motion for Judgment on the Pleadings [#17], and plaintiff's Cross-Motion for Judgment on the Pleadings [#25]. For the reasons that follow, defendants' motion is granted in part and denied in part, and plaintiff's motion is denied.
BACKGROUND
Plaintiff, proceeding pro se, commenced this action on September 28, 2000. He alleges that on September 23, 1999, defendant Philip Greis, a Captain at Lakeview Correctional Facility, conducted a disciplinary hearing on charges that plaintiff had assaulted and interfered with a staff member. Greis found plaintiff guilty, and imposed a sentence of 180 days of confinement in the Segregated Housing Unit ("SHU"), and 21 days of restricted diet. Plaintiff appealed this determination to defendant Donald Selsky, Director of Special Housing and Inmate Disciplinary Programs for the New York State Department of Correctional Services ("DOCS"), who affirmed the convictions. Subsequently, on June 9, 2000, the Commissioner of DOCS reversed plaintiff's convictions. It appears that plaintiff served his sentence prior to the reversal of his convictions.
Plaintiff's claim against Greis is as follows:
Defendant P. Greis was an unimpartial hearing officer, when he signed, dated and wrote a finding of guilt prior to hearing all evidence. There was no substantial evidence, to find plaintiff guilty of charges. The penalty imposed by the defendant was unimpartial, malicious, and intentional, when defendant had written a disposition prior to hearing all evidence.
(Complaint [#1], ¶ 4). Plaintiff alleges that Selsky was personally involved in the alleged violation, by virtue of having affirmed Greis' determination. The Complaint does not allege any specifics regarding the conditions in SHU during plaintiff's 180 days of confinement, and, as to his 21 days of restricted diet, the complaint mentions only that his diet consisted of "loaf." (Complaint [#1], ¶ 4). Although plaintiff was sentenced to both 180 days in the SHU and 21 days of restricted diet, his complaint demands compensatory damages only for the 21 days of restricted diet. Plaintiff also seeks punitive damages of $10,000. and a declaratory judgment. (Complaint [#1], ¶ 5).
Defendants answered the complaint, denying that they had in any way violated plaintiff's constitutional rights, and, on January 2, 2001, they filed the subject motion for judgment on the pleadings. The Court notes that defendants' motion is premised solely upon their contention that 21 days of restricted diet is insufficient, as a matter of law, to constitute the "atypical and significant hardship" required to establish a protected liberty interest, and does not address the 180 days that plaintiff spent in SHU. Nonetheless, defendants' motion seeks the dismissal of the entire complaint, not merely the dismissal of the restricted diet claim. (See, Defendants' Memo of Law, pp. 2, 7). Plaintiff filed his Cross-Motion [#26] on February 6, 2001. In his memorandum of law, plaintiff alleges, inter alia, that he "only ate the restricted diet loaf 5 times throughout the 21 days duration. The other times plaintiff managed to survive on water." (Plaintiff's Memorandum, p. 8). Since the Complaint does not suggest that plaintiff was denied the restricted diet loaf at any time during the 21 days, the Court interprets his statement to mean that he voluntarily chose not to eat the loaf on all but five of the occasions that it was served to him.
ANALYSIS
It is well settled that a motion for judgment on the pleadings, pursuant to Fed.R.Civ.P. 12(c), is analyzed using the same standard as a motion to dismiss under Fed.R.Civ.P. 12(b)(6), and that, "[u]nder that test, a court must accept the allegations contained in the complaint as true, and draw all reasonable inferences in favor of the non-movant; it should not dismiss the complaint 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." Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994) (citations and internal quotations omitted), cert. denied, 513 U.S. 816 (1994). Moreover, "[t]his standard is applied with particular strictness when the plaintiff complains of a civil rights violation. Id. (citation omitted).
In addition, a Court should read a pro se litigant's papers liberally, interpreting them "to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). However, when alleging a violation of a civil rights statute, even a pro se litigant must make "specific allegations of fact indicating a deprivation of rights, instead of a litany of general conclusions that shock but have no meaning." Barr v. Abrams, 810 F.2d 358, 363 (2d Cir. 1987).
It is well settled that,
[a] prisoner asserting that he was denied due process in connection with prison disciplinary hearings that resulted in segregative confinement or a loss of privileges must make a threshold showing that the deprivation of which he complains imposed an atypical and significant hardship on him in relation to the ordinary incidents of prison life.
Sims v. Artuz, 230 F.3d 14, 22 (2d Cir. 2000) (citing Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995)) (internal quotations omitted). As applied to a due process claim involving a prisoner's diet, in order to allege an atypical and significant hardship, it is not sufficient merely to allege a dietary restriction, but rather, a plaintiff must allege that the restricted diet is nutritionally inadequate or otherwise poses a threat to his physical well-being. See, Robles v. Coughlin, 725 F.2d 12, 15 (2d Cir. 1983); Porter v. Coombe, No. 97 Civ. 2394(KTD), 1999 WL 587896 (S.D.N.Y. Aug. 4, 1999); Dumpson v. Rourke, No. CIVA96CV621 (RSP/GJD), 1997 WL 610652 at *2 (N.D.N.Y. Sep. 26, 1997). In the instant case, plaintiff does not allege that the restricted diet was nutritionally inadequate or otherwise harmful to his health, and the fact that he may have chosen not to eat the loaf on all but five occasions does not amount to an atypical and significant hardship imposed by prison officials. Accordingly, the Court finds that plaintiff's claim regarding the restricted diet fails to allege atypical and significant hardship, and defendants' motion is granted as to that claim.
However, defendants' motion did not address the 180 days which plaintiff spent in the SHU as a result of the alleged due process violation, and the Court cannot find, as a matter of law, based on the pleadings, that such confinement was not an atypical and significant hardship. See, Sims v. Artuz, 230 F.3d at 23 ("Although we have not established a bright-line rule as to how lengthy a SHU confinement will be considered atypical and significant, we have characterized segregative sentences of 125-288 days as `relatively long,' and thus necessitating `specific articulation of factual findings' before the district court could properly term the confinement atypical or insignificant.") (citations and internal quotations omitted). Accordingly, defendants' motion is denied as to the SHU confinement claim.
As for plaintiff's Cross-Motion for judgment on the pleadings, the Court notes that defendants, in their Answers, deny violating plaintiff's due process rights, and also raise several affirmative defenses. Accordingly, plaintiff's motion is denied.
CONCLUSION
For all of the foregoing reasons, defendants' Motion for Judgment on the Pleadings [#17] is granted in part, and denied in part. The motion is granted solely as to plaintiff's restricted diet claim, but is otherwise denied. Plaintiff's Cross-Motion for Judgment on the Pleadings [#25] is denied in its entirety.
So Ordered.