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construing civil rights complaint "liberally in favor" of plaintiff who "obtained the benefit of counsel" after filing of pro se complaint
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94 Civ. 3292 (CSH).
September 29, 2000.
MEMORANDUM OPINION AND ORDER
Plaintiff Juan Gomez commenced this action under 42 U.S.C. § 1983, alleging violations of his right to procedural due process in connection with prison disciplinary hearings. Defendants Sally Kaplan and Donald Selsky now move pursuant to Fed.R.Civ.P. 12(b)(6), or in the alternative pursuant to Fed.R.Civ.P. 12(c), to dismiss the complaint.
According to Defendant's papers, Defendant Kaplan's true name is Sabina Kaplan.
Defendants did not explain the basis for making their motion in the alternative. I presume that Defendants moved in the alternative pursuant to Rule 12(c) because they have already answered the complaint. "[A] defense of failure to state a claim upon which relief may be granted, typically raised pursuant to Rule 12(b)(6), can be made after an answer has been filed by moving for judgment on the pleadings pursuant to Rule 12(c). . . .[Nevertheless], the Second Circuit has instructed that the same standards that are employed for dismissing a complaint for failure to state a claim under Fed.R.Civ.P. 12(b)(6) are applicable on a motion to dismiss the complaint under Rule 12(c) for failure to state a claim." Jenkins v. Sea-Land Service, Inc., 1993 WL 33406 at *1-2 (S.D.N.Y. 1993) (citations and internal quotations omitted).
I
Defendants' motion is not made on a clean slate as this case has an unusual history. However, before reviewing the procedural twists and turns, a brief summary of the facts out of which Plaintiff's claim arises will provide the necessary context.The facts are not in dispute. On August 14, 1993, Jose Garcia, an inmate at Green Haven Correctional Facility, was stabbed in the prison yard. Plaintiff Juan Gomez was subsequently charged as the assailant. After a disciplinary hearing, Gomez was found guilty on August 30, 1993. The disposition was then reviewed by Defendant Donald Selsky, Director of the Office of Special Housing and Inmate Disciplinary Programs, who had been designated "as the sole designee to hear prisoners' appeals of decisions rendered by DOCS [New York State Department of Correctional Services] disciplinary hearing officers in cases involving the most serious disciplinary offenses, so-called Tier III superintendent's hearings." Young v. Selsky, 41 F.3d 47, 49 (2nd Cir. 1994) (alteration added). On November 9, 1993, Selsky reversed the finding against Gomez due to the hearing officer's failure to interview a witness in the presence of Gomez and provide a written reason for his refusal to do so.
Defendant Kaplan, a Senior Corrections Counselor at Green Haven, conducted a second hearing on the stabbing charge. The case against Gomez rested primarily on the testimony of Lieutenant Czyz, who was told by a confidential informant that Gomez had stabbed Garcia. Plaintiff's defense was based on misidentification and alibi.
Prior to the hearing, Gomez requested access to certain witnesses and evidence to support his case. Specifically, Plaintiff sought to interview three inmates: Marino, Carabello, an inmate previously identified as the attacker, and Garcia, the stabbing victim. He also requested that Nurse Bedell, the nurse who treated Garcia after the stabbing, and the confidential informant be produced as witnesses at the hearing. Gomez also sought production of the "B-Block go-round list" to prove that he was in his cell at the time of the stabbing.
Most of Gomez' requests went unfulfilled. Garcia, the victim, refused to testify. Nurse Bedell had left the institution and efforts to contact her proved unsuccessful. The "B-Block go-round list" was not produced as such records were not retained longer than seven days. The informant was not a witness at the hearing. Nevertheless, although Defendant Kaplan did not interview the informant personally, she determined that the informant was reliable based on Lt. Czyz's statement and assessment. Accordingly, Kaplan found Gomez guilty of the stabbing and sentenced him to 365 days in the Special Housing Unit, followed by sixty days in keeplock, as well as deprivation of six months of good time credits. Plaintiff again appealed the decision to Defendant Selsky. This time, Selsky upheld the hearing officer's finding and sentence.
Plaintiff subsequently commenced this action, alleging that Kaplan's failure to personally interview the informant, to obtain Nurse Bedell's testimony, to have Garcia explain why he refused to testify and to produce the "go-round list", and Selsky's dismissal of these contentions constitute violations of Plaintiff's right to due process. Plaintiff seeks damages for his segregated confinement, but not for the loss of good-time credits.
In a previous opinion, see Gomez v. Kaplan, 964 F. Supp. 830 (S.D.N.Y. 1997) ("Gomez I"), addressing the parties' cross-motions for summary judgment, I determined that all but one of Plaintiff's claims were lacking in merit. With respect to the remaining claim I granted summary judgment on liability in favor of Plaintiff, holding that under Richardson v. Selsky, 5 F.3d 616 (2nd Cir. 1993), Kaplan, as the hearing officer, was required to independently assess the credibility and reliability of the confidential informant. I further held that the Defendants were not entitled to qualified immunity as the right to require a hearing officer to make an independent assessment of the reliability of a confidential informant before relying on evidence from the informant was clearly established at the time of Gomez's second disciplinary hearing.
On the very same day as I issued my opinion and unknown to the parties or the Court at the time, the Supreme Court issued a decision in Edwards v. Balisok, 520 U.S. 641 (1997), clarifying the proper scope of state prisoners' claims under § 1983. On the basis of Edwards, Defendants moved to vacate my prior opinion, which granted Plaintiff summary judgment, and to dismiss the complaint. In Edwards, the Supreme Court held that a claim for damages for a violation of procedural due process is not cognizable under § 1983 where the nature of the challenge to the procedures necessarily implies the invalidity of the judgment and/or punishment imposed, unless the disciplinary disposition has already been reversed through a state administrative or judicial proceeding or a habeas proceeding. See Edwards, 520 U.S. at 645. As in the case at bar, the plaintiff in Edwards was sentenced to segregated confinement and deprivation of good-time credits after being found guilty of committing prison infractions. Id. at 643. Since the hearing decision against Gomez had not been overturned and since a holding that Plaintiff was entitled to damages for his segregated confinement necessarily implied the invalidity of that confinement and the judgment that Gomez had stabbed Garcia, I vacated my earlier opinion and dismissed the complaint. Gomez v. Kaplan, 1998 WL 355427 (S.D.N.Y. 1998) ("Gomez II").
Subsequently, the Second Circuit had occasion to analyze Edwards in its decision in Jenkins v. Haubert, 179 F.3d 19 (1999). In Jenkins, the Court of Appeals limited the reach of the holding in Edwards by distinguishing between challenges to the conditions of confinement, including disciplinary segregation such as keeplock and solitary confinement, and challenges to the fact or duration of confinement, which would be implicated by, inter alia, the deprivation of good-time credits. The Second Circuit held that a plaintiff bringing a suit challenging only the conditions of confinement need not show as a threshold matter that the disciplinary hearing decision and sentence were reversed or invalidated. Jenkins, 179 F.3d at 27. In the case at bar, Plaintiff seeks damages only for his placement in segregated confinement. Accordingly, in light of the decision in Jenkins, Defendants stipulated that Gomez II, in which I dismissed the action, be vacated, that Gomez I, awarding summary judgment to Plaintiff on the issue of liability be reinstated, and that the case proceed to trial on the issue of damages.
Apparently on further reflection, Defendants have completely changed their position and now argue that Jenkins is distinguishable from the case at bar because it did not involve the loss of good-time credits. Although Gomez does not seek damages for the loss of good-time credits, Defendants maintain that a finding in Plaintiff's favor will necessarily require restoration of the good-time credits which were revoked and thus affect the length of confinement. Defendants contend that Jenkins is only applicable in a pure conditions of confinement case and not where both the conditions of confinement and the fact or duration of that confinement are implicated. Accordingly, Defendants contend that Edwards is still controlling and that the case should once again be dismissed. What precipitated the Defendants' revised reading of Jenkins remains a complete mystery. Nonetheless, their motion to dismiss is now before this Court and must be decided.
II
"On a motion to dismiss, the facts in the complaint are presumed to be true, and all reasonable inferences are drawn in the plaintiff's favor." Equal Employment Opportunity Commission v. Staten Island Savings Bank, 207 F.3d 144, 148 (2nd Cir. 2000). "To survive a motion for dismissal under Rule 12(b)(6), the complaint must allege facts that, if true, would create a judicially cognizable cause of action." South Road Associates v. International Business Machines Corp., 216 F.3d 251, 253 (2nd Cir. 2000). However, "[d]ismissal is not appropriate '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.'" Chance v. Armstrong, 143 F.3d 698, 701 (2nd Cir. 1998) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). "This rule applies with particular force where the plaintiff alleges civil rights violations or where the complaint is submitted pro se." Id.
The complaint in the instant action falls within both of these special categories. The suit is brought under 42 U.S.C. § 1983 and although he now enjoys the advice of counsel, Plaintiff commenced this action pro Se.
Based on the plain language of § 1983, Plaintiff's claim is cognizable. However, in a series of cases, the Supreme Court has limited the scope of § 1983 in order to avoid potential conflicts or collisions between § 1983 and the habeas statute. A brief review of these cases is necessary to understand the basis for the current debate over the proper interpretation of the Second Circuit's holding in Jenkins.
42 U.S.C. § 1983 states in pertinent part:
Every 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 tights, 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. . . .
The first case relevant to the instant dispute, in which the Supreme Court set out to define the proper relationship between § 1983 and the habeas statute, is Preiser v. Rodriguez, 411 U.S. 475 (1973). In Preiser several cases, all involving state prisoners seeking restoration of good-time credits canceled as a result of disciplinary proceedings, were consolidated. The prisoners brought their actions pursuant to 42 U.S.C. § 1983. Since restoration of the good-time credits would result in the prisoners' immediate release, and thus the plaintiffs were attacking the fact or length of their confinement, the Supreme Court held that habeas was not only an appropriate remedy, but the exclusive remedy. Preiser, 411 U.S. at 487-490. Although the plaintiffs' claims fell within the literal terms of § 1983, the Court reasoned that allowing such claims to be brought pursuant to § 1983 would enable prisoners to evade the requirement that they first exhaust state remedies before making a habeas petition in federal court. Id. at 489-490. "It would wholly frustrate explicit congressional intent to hold that the respondents in the present case could evade this requirement by the simple expedient of putting a different label on their pleadings. In short, Congress has determined that habeas corpus is the appropriate remedy for state prisoners attacking the validity of the fact or length of their confinement, and that specific determination must override the general terms of § 1983." Id.
The Court further held that even if restoration of the good-time credits would not have resulted in immediate release, but rather merely a shortening of the overall length of confinement, habeas corpus would remain the proper means of relief. Preiser, 411 U.S. at 487.
The plaintiffs in Preiser did not seek damages, but only restoration of their good-time credits. However, the plaintiffs argued that precluding their § 1983 claims could deprive other state prisoners of any damages remedy as damages cannot be awarded in a habeas proceeding. Id. at 493. The Court's short answer to this contention was that the prisoners in Preiser did not seek damages. However, the Court continued, positing that:
[i]f a state prisoner is seeking damages, he is attacking something other than the fact or length of his confinement, and he is seeking something other than immediate or more speedy release — the traditional purpose of habeas corpus. In the case of a damages claim, habeas corpus is not an appropriate or available federal remedy. Accordingly, as petitioners themselves concede, a damages action by a state prisoner could be brought under the Civil Rights Act in federal court without any requirement of prior exhaustion of state remedies.Id. at 494. Since in the case at bar, Gomez is only seeking damages, according to this analysis, he would be entitled to bring his § 1983 claim.
However, some twenty years later, in Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court reconsidered its statement on the issue of damage claims in Preiser and rejected it as "an unreliable, if not an unintelligible guide." Heck, 512 U.S. at 482. In Heck, the plaintiff, a state prisoner, brought a § 1983 claim attacking the legality of his conviction on three grounds: unlawful investigation leading to Heck's arrest, destruction of exculpatory evidence, and the use of an illegal voice identification procedure at trial. Heck did not seek release or a shortening of his sentence, but merely damages. As such, seemingly under Preiser, the claim was cognizable.
Recognizing that in Preiser it had previously indicated in dicta that a state prisoner seeking only damages may bring a § 1983 claim, the Supreme Court noted that the Preiser "opinion had no cause to address, and did not carefully consider, the damages question before us today." Id. After more careful consideration, the Supreme Court qualified its earlier suggestion that state prisoners may bring § 1983 claims when damages are the only remedy sought: "That statement may not be true, however, when establishing the basis for the damages claim necessarily demonstrates the invalidity of the conviction." Id. at 481-482. Since the sole basis for Heck's damages claim was the invalidity of his conviction, the Court held that his claim was not cognizable under § 1983. The Court stated that:
in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such a determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983.Id. at 486-487. In an effort to clarify its ruling the Court explained that "[w]e do not engraft an exhaustion requirement upon § 1983, but rather deny the existence of a cause of action." Id. at 489. In other words, where a prisoner is, in effect, attacking the fact or length of his confinement, habeas is the appropriate remedy, and only if the prisoner is granted the writ of habeas corpus can he then pursue a § 1983 damages claim. Id. at 489-490.
"A 'conviction,' for purposes of Heck, includes a ruling in a prison disciplinary proceeding that results in a change to the prisoner's sentence, including the loss of good-time credits." Clarke v. Stadler, 154 F.3d 186, 189 (5th Cir. 1998). The Supreme Court so held, thereby extending the reach of Heck, in Edwards v. Balisok, 520 U.S. 641 (1997). In Edwards, the prisoner-plaintiff was sentenced to ten days in isolation, twenty days in segregation and deprivation of 30 days' good-time credit after a disciplinary hearing finding him guilty of several prison infractions. Alleging violations of his right to due process during the disciplinary hearing, Edwards sought, inter alia, damages under § 1983 for deprivation of good-time credit without due process. Specifically, Edwards was prevented from introducing witness testimony in his defense and he claimed that the hearing officer was biased. Edwards did not attack the deprivation of good-time credit as a substantive matter, but alleged only that the procedures employed were unfair. Nevertheless, the Supreme Court held that an award of damages for the deprivation of good-time credit would amount to an acknowledgment that the hearing officer was partial and thus necessarily imply the invalidity of the hearing officer's judgment against him. Edwards, 520 U.S. at 646-648. Accordingly, Edwards' § 1983 claim was dismissed.
It was on the basis of Edwards that I held in Gomez II that this action be dismissed because "Plaintiff's allegations of procedural due process errors were serious enough to undermine the validity of his conviction." 1998 WL 355427 at *2. Under Edwards, or so it seemed, unless and until Gomez could show that the finding of guilt on the stabbing charge had been overturned, his § 1983 claim was not cognizable.
However, the interaction between the specific federal habeas statute, which requires the exhaustion of state remedies as a prerequisite, and the more general federal civil rights statute, which ordinarily does not require exhaustion before a plaintiff may pursue a remedy in federal court, evolved yet again with the Second Circuit's decision in Jenkins v. Haubert, 179 F.3d 19 (2nd Cir. 1999). Jenkins, also a state prisoner, commenced a § 1983 action after he was found guilty at a prison disciplinary hearing and sentenced to thirty days in keeplock. Unlike its predecessor cases, namely, Preiser, Heck and Edwards, Jenkins did not involve a loss of good-time credit. The sole issue, as characterized by the Court of Appeals, was "whether Heck and Edwards bar a § 1983 claim on facts such as these, where a prisoner (or former prisoner) alleges a constitutional violation arising out of the imposition of intra-prison disciplinary sanctions that have no effect on the duration of the prisoner's overall confinement." Jenkins, 179 F.3d at 21.
After an exhaustive review of the relevant case law, the Second Circuit answered the query in the negative. The Court determined that Heck and Edwards were not controlling because they were distinguishable. Although a suit for damages, Heck involved a direct attack on the validity of the plaintiff's conviction. Regardless of the fact that Heck did not seek release from prison, a finding in his favor necessarily rendered his confinement illegal. Edwards also sued for damages only. But in Edwards not only had the plaintiff been sentenced to disciplinary segregation, but also a deprivation of good-time credit, thus implicating the overall length of his confinement. However, Jenkins did not lose any good-time credit. Accordingly, Jenkins' suit was "properly characterized as a challenge to the conditions of his confinement, rather than as a challenge to the fact or duration of his confinement." Id. at 27. While challenges to the fact or length of confinement fall within the traditional province of habeas corpus, see Preiser, 411 U.S. 475, "a § 1983 action is a proper remedy for a state prisoner who is making a constitutional challenge to the conditions of his prison life." Id. at 499. "Conditions of confinement" encompasses "terms of disciplinary or administrative segregation such as keeplock or solitary confinement, as well as more general conditions affecting a prisoner's quality of life." Jenkins, 179 F.3d at 28. Since Jenkins was not attacking the fact or length of his confinement, directly or indirectly, nor was he seeking immediate release or a shorter sentence, it was not necessary for him to invalidate the prison hearing officer's judgment against him prior to bringing a § 1983 claim for damages.
The Second Circuit noted the possibility that were Jenkins still serving his time in keeplock, he might be entitled to seek habeas relief in order to be released from this more restrictive custody back into the general prison population. See Jenkins, 179 F.3d at 23. Were this the case, it follows that Jenkins could not seek damages for such confinement under § 1983 before pursuing habeas without running afoul of Heck and Edwards. However, since Jenkins had long since completed his term of more restrictive confinement, a habeas petition seeking release from keeplock was no longer viable. See, e.g., Johnson v. Freeburn, 29 F. Supp.2d 764, 776 n. 3 (E.D.Mich. 1998); cf. Spencer v. Kemna, 523 U.S. 1 (1998) (dismissing habeas petition by prisoner challenging parole revocation for failure to meet Article III case or controversy requirement where sentence expired before merits of petition were adjudicated). After reading the concurring opinions in Heck and Spencer, the Court of Appeals concluded that "five justices hold the view that, where federal habeas corpus is not available to address constitutional wrongs, § 1983 must be." Jenkins, 179 F.3d at 26. Since Jenkins was no longer confined in keeplock and had not been deprived of good-time credit, neither the fact nor length of his confinement were implicated and thus habeas could not provide an appropriate remedy. Consequently, a § 1983 claim had to be available to Jenkins regardless of whether the findings of guilt of prison infractions had been overturned or invalidated. Although, as with Jenkins, Gomez has long since finished serving his sentence of segregated confinement, unlike Jenkins, Gomez was deprived of good-time credit. Thus habeas might still be available to him.
On the basis of Jenkins, the parties stipulated that Gomez II be vacated and the original judgment reinstated. However, without bothering to explain their shift in position, but presumably upon further contemplation, Defendants now argue that Jenkins is distinguishable from the case at bar and that Edwards is controlling. Naturally, Plaintiff disagrees.
Defendants rest their case on the fact that unlike Jenkins, Gomez was deprived of good-time credit, and thus the overall length of his sentence may be implicated. As such, even though Defendants concede that Gomez is seeking damages only for his segregated confinement, a finding in Plaintiff's favor necessarily implies the invalidity of the deprivation of good-time credit as well. In this way the case at bar resembles Heck and Edwards more closely. In Heck, the plaintiff sought only damages, but a finding in his favor would have implied the invalidity of his confinement. The fact that he did not seek release was irrelevant. Edwards is even more on point. As with Gomez, Edwards was sentenced to segregated confinement and deprivation of good-time credit. Edwards also sought only damages. Nevertheless, because a ruling for the plaintiff would have implied the invalidity of the deprivation of good-time credit, the § 1983 claim was not cognizable. It apparently did not matter that Edwards was not seeking restoration of the good-time credit.
Plaintiff attempts to distinguish his case from Edwards by emphasizing the fact that whereas Edwards sought damages specifically for the loss of good-time credits, Gomez seeks damages only for his segregated confinement. Plaintiff argues that a claim for damages for segregated confinement and a claim for damages for deprivation of good-time credit are separate and distinct claims. As asserted by Plaintiff, "[i]t would be entirely illogical to hold that a plaintiff should be denied the right to bring suit asserting a cognizable claim (a suit for damages based on sanctions relating to conditions of confinement) simply because he might have brought — but did not bring — suit asserting a non-cognizable claim (a suit for damages based on sanctions relating to the length of confinement)." (Memorandum of Law in Support of Plaintiff's Opposition to Defendants' Motion, p. 5). In spite of the surface appeal of this argument, I am not persuaded. Gomez's segregated confinement and deprivation of good-time credit were part of the same sentence imposed after he was found guilty of a single charge, namely, stabbing another inmate. If Gomez was denied due process during the hearing at which he was found guilty of the stabbing charge, it necessarily follows that both the segregated confinement and the deprivation of good-time credit were results of the same tainted proceeding. Invalidation of one implies invalidation of the other.
Plaintiff also argues that the length of his confinement is not implicated because "[a] disposition involving loss of a specified period of good behavior allowance made in a superintendent's hearing under Part 254 of this Title shall be deemed to be tentative until such time as it actually affects consideration for parole or for conditional or other release, and shall then either be confirmed or be modified by the commissioner or his designee." 7 N.Y.C.R.R. § 260.4(b) (emphasis added). According to Plaintiff, "it is far too speculative to assume that a result here would affect the fact or duration of confinement." (Memorandum of Law in Support of Plaintiff's Opposition to Defendants' Motion, p. 7). Plaintiff misconstrues the tentative nature of a forfeiture of good-time credits. "The disposition of a superintendent's proceeding is not rendered non-final by language in the regulations providing that a loss of good time is 'tentative' until the recommended loss affects consideration for parole or conditional release. This regulation merely recognizes that, since the time allowance committee only meets once every three years with respect to a particular inmate or four months before he becomes eligible for conditional release, the 'loss' of good time cannot actually be implemented until then." People ex rel. Jelich v. Smith, 482 N.Y.S.2d 391, 392 (N.Y. A.D. 4th Dept. 1984) (internal citations omitted); see also, People ex rel. Miranda v. Kuhlmann, 511 N.Y.S.2d 981, 982 (N.Y. A.D. 3 rd Dept. 1987). Plaintiff attempts to diminish the import of these holdings by characterizing them as merely a statute of limitations principle, that is that a claim challenging a deprivation of good-time accrues at the time of the superintendent's decision levying such a penalty. However, it is more than that. The fact that the cause of action accrues when it does is a recognition that if the deprivation was unlawful, the inmate suffers an immediate injury regardless of the possibility that the good-time lost might later be restored. None of the cases evaluating § 1983 claims attacking a disciplinary decision involving a loss of good-time credits suggests that the fact or length of confinement is not implicated unless the inmate has already been considered for parole or conditional release. If Plaintiff were correct, if the deprivation of good-time does not implicate the fact or length of a prisoner's confinement unless and until the time allowance committee actually implements the superintendent's decision, a prisoner could not attack the deprivation in a state court CPLR article 78 proceeding or via habeas, which the law clearly allows him to do. See Preiser, 411 U.S. at 487; see also, People ex rel Jelich, 482 N.Y.S.2d 391. Moreover, "[t]he correctness of an underlying superintendent's proceeding . . . is not an issue with which the time allowance committee is concerned," People ex rel Jelich, 482 N.Y.S.2d at 392. Rather the function of the time allowance committee is "to consider whether petitioner's subsequent behavior merited restoration of the good behavior allowance lost as the result of that determination (see, 7 NYCRR 261.3[b])." Pfeifer v. Goord, 708 N.Y.S.2d 217, 218 (N.Y. A.D. 4th Dept. 2000). As such the forfeiture of good-time as a result of a disciplinary hearing is final and is not subject to subsequent review nor is it treated merely as a recommendation. Although the prisoner has available to him ways by which he may recoup time lost, potentially cancelling out the effect of part or all of the deprivation, whether he will earn all of the lost time back is what is speculative. Unless and until he does, the deprivation of good-time most certainly does effect the length of the prisoner's sentence.
Both parties try to glean from Jenkins the answer to a question which that case simply did not pose. In that case, the Second Circuit concluded that the Supreme "Court [in Edwards] did not address whether the prisoner could proceed separately with his § 1983 claim as to those portions of his sentence which affected only the conditions of his confinement," thus leaving the very question presented by the case at bar open to interpretation. Jenkins, 179 F.3d at 25 (alteration added). This language explains why the parties entered a stipulation in which they agreed that Gomez II, dismissing Plaintiff's case on the basis of Edwards, be vacated. Although the Court of Appeals implied that it would address this issue, as it turned out it did not have occasion to do so. In Jenkins, the Court of Appeals decided that a prisoner could maintain a challenge to the conditions of his confinement under § 1983 without first satisfying "Heck's favorable termination requirement." Id. at 27. However, the Court of Appeals defined a condition of confinement as "any deprivation that does not affect the fact or duration of a prisoner's overall confinement." Id. at 28. Unlike Gomez and Edwards, Jenkins had only been sentenced to segregated confinement. Since he had not been deprived of any good-time credit, the fact or duration of his confinement was clearly not at issue; the Court of Appeals was faced with a pure conditions of confinement case. Thus, the Second Circuit did not address in Jenkins, any more than the Supreme Court did in Edwards, whether a prisoner sentenced to both segregated confinement and deprivation of good-time may maintain a § 1983 damages suit for the former regardless of the fact that he cannot maintain one for the latter. To the extent that an answer to this question does exist, Jenkins does not provide it.
Although Edwards had been sentenced to both segregated confinement and deprivation of good-time credit, the Supreme Court "focused exclusively on the revocation of his good-time credits which, of course, affected the length of his overall sentence." Jenkins, 179 F.3d at 25.
Although the cases are few, there are some that speak precisely to this issue, namely, whether a prisoner may maintain a due process claim for damages under § 1983 where he has been sentenced to both segregated confinement and loss of good-time credit. These cases unanimously hold that such claims are not viable, or to put it another way, that under such circumstances Edwards is controlling, not Jenkins. These holdings notwithstanding, for various reasons, not the least of which is there total lack of analysis, they are not controlling, let alone particularly persuasive, authority.
Jackson v. Johnson, 15 F. Supp.2d 341 (S.D.N.Y. 1998), involved a due process challenge by a prisoner who had been confined to keeplock after being found guilty of a disciplinary violation; the prisoner was not deprived of any good-time credit. Although the decision preceded Jenkins, the court came to the same conclusion as the Court of Appeals, holding that such a claim was not barred by Edwards. However, in a report and recommendation attached to the opinion, which was adopted with respect to this issue, the magistrate judge stated "[o]f course, if the prison disciplinary hearing results in both a loss of good time credits and SHU confinement, Edwards applies." Jackson, 15 F. Supp.2d at 360 n. 6.
In both Jimenez v. Goord, 205 F.3d 1323, 1999 WL 1254510 (2nd Cir. 1999), and Johnson v. Gummerson 201 F.3d 431, 1999 WL 1212483 (2nd Cir. 1999), a prisoner brought an action pursuant to § 1983 after being subject to a penalty of segregated confinement and loss of good-time as a result of a disciplinary hearing. Both cases were dismissed under the authority of Edwards and distinguished from Jenkins. As stated in Jimenez:
In Jenkins v. Haubert, 179 F.3d 19 (2d Cir.n 1999), decided after the district court's decision in the case at hand, this Court held that the scope of Edwards should be understood as limited to dispositions involving the overall length of confinement. See 179 F.3d at 27. Such is the case here. The penalties imposed on Jimenez involved both punitive segregation and loss of good time. Invalidating Jimenez' SHU penalty because of the procedures employed at the hearing would, at the same time, necessarily imply the invalidity of loss of good time, notwithstanding the fact that, as in Edwards, restoration of good time is not sought as a remedy. See Edwards, 520 U.S. at 643-44; see also Jackson v. Johnson, 15 F. Supp.2d 341, 360 n. 6 (S.D.N.Y. 1998).Jimenez, 205 F.3d 1323, 1999 WL 1254510 at *2. The Second Circuit made the same ruling for the same reason in Johnson:
In Jenkins, we held that Heck and Edwards do not apply when a prisoner "alleges a constitutional violation arising out of imposition of intra-prison disciplinary sanctions that have no effect on the duration of the prisoner's overall confinement." 179 F.3d at 21. In the present case, however, plaintiff's disciplinary hearing resulted in both administrative segregation and the loss of six months' good-time credits. As in Edwards, therefore, plaintiff's claim, if successful, would have an effect on the duration of his overall confinement. Thus, our holding in Jenkins is inapposite, and the Heck rule applies.Johnson, 201 F.3d 431, 1999 WL 1212483 at *2.
In a rational world, these very recent rulings by the Second Circuit would appear to settle the issue currently before this Court. But they may as well never have been uttered. Both Jimenez and Johnson are unpublished opinions and pursuant to the Rules for the United States Court of Appeals for the Second Circuit, § 0.23, such statements "shall not be cited or otherwise used in unrelated cases before this or any other court."
The concept of an unpublished opinion or disposition has in today's world of electronic libraries and databases become nearly obsolete. The reason, according to the rule, that dispositions in open court or by summary order are not to be cited or granted any precedential authority is because "these statements do not constitute formal opinions of the court and are unreported or not uniformly available to all parties." (emphasis added). However, these soidisant informal, unreported and unavailable rulings are in fact readily available to anyone with access to WESTLAW or LEXIS-NEXIS, which have become necessary complements to, if not replacements for, the traditional Federal Reporters library. Whereas such opinions are not printed in the bound volumes, which contain only a table of such decisions listing the case name and outcome, WESTLAW and LEXIS-NEXIS include the text of such summary orders. Given our technological advances, this rule would appear to have outlived its stated purpose. While I understand the potential problem caused by allowing parties or courts to cite unpublished opinions, it is difficult to understand why opinions, frequently of considerable substance, should be characterized as "unpublished" or "unreported" merely because they are not included in the printed reporters. To label them as such is at the least a misnomer, if not a poor reason to deprive the lower courts of the use and guidance of the wisdom of the higher courts. Nevertheless, the rule remains in effect and I must abide by it. For this reason, Jimenez and Johnson do little to resolve the present dispute.
See Lloyd v. United States, 2000 WL 804632 at *4 (E.D.N Y 2000) (Glasser, J.) ("1 will not discuss the debatable premise of the Summary Order rule. Suffice it to say that I find the views of its critics unassailable. See, e.g., Richard Arnold, Unpublished Opinions: A Comment, 1 Journal of Appellate Practice and Process 219 (1999); Dragich, Will the Federal Courts of Appeals Perish if They Publish? or Does the Declining Use of Opinions to Explain and Justify Judicial Decisions Pose a Greater Threat? 44 Am.U.L.Rev. 757 (1995); Baker, Intramural Reforms: How the U.S. Courts of Appeals Have Helped Themselves, 22 Fla.St.U.L.Rev. 913 (1995); Reynolds and Richman, the Non-Precedential Precedent — Limited Publication and No Citation Rules in The United States Courts of Appeals, 78 Col.L.Rev. 1167 (1978).")
The prisoner plaintiff in Jamison v. Dee, 2000 WL 502871 (S.D.N.Y. 2000), also alleged violations of due process during a disciplinary hearing that resulted in segregated confinement and the deprivation of good-time credit. Because the length of Jamison's sentence was implicated and because the sentence had not been "impugned by some other proceeding", 2000 WL 502871 at *2, the court dismissed the case in its entirety under Edwards.
None of these cases considered the possibility, urged upon this Court by Gomez, that the plaintiffs' claims be split in such a way so that insofar as the claims related to the deprivation of good-time they were properly dismissed, but insofar as they related to the segregated confinement, the conditions of confinement, they should have survived. Although Gomez cites no case in which a court has implemented the suggested alternative, for reasons already discussed there is little persuasive, let alone governing authority, supporting Defendants' contrary position.
In Simmons v. Carriero, 2000 WL 432793 (W.D.N.Y. 2000), the plaintiff, a prisoner sentenced to segregated confinement and loss of good-time credits, argued that his "action is not so barred inasmuch as he is not challenging the length of his confinement but rather the conditions of his incarceration." Simmons, 2000 WL 432793 at *2. Phrased so, the argument seems to be the same as the one made by Gomez. Because the court construed the plaintiff's claim as calling into question the validity of the result of the disciplinary hearing, which had not been reversed, it held that the § 1983 claim was not cognizable "[r]egardless of how this action is factually characterized." Id. at *3 In-spite of its surface similarity to the case at bar, it is simply not clear from the opinion whether Simmons was attempting to limit his claim to damages only for the segregated confinement, as Gomez has done, or whether he simply used the rhetoric from Jenkins as a talisman in the hopes that it would transform his otherwise barred action into a viable one. Consequently, I derive little guidance from that case.
Plaintiff does argue as a matter of policy that if his entire claim is not viable, an irresistible incentive will be created for prison officials to always attach a deprivation of good-time, no matter how small, to any penalty in order to foreclose prisoners from commencing § 1983 suits challenging even the conditions of confinement. In his wisdom Justice Brennan foresaw that this problem would arise nearly thirty years ago when the Supreme Court decided Preiser and wrote extensively on this very issue.
Writing for the dissent and as part of his effort to voice his concerns about the implications of the majority's decision, Justice Brennan first assumed what Jenkins has confirmed that "[i]f a prisoner's sole claim is that he was placed in solitary confinement pursuant to an unconstitutional disciplinary procedure, he can obtain federal injunctive relief and monetary damages in an action under § 1983." Preiser, 411 U.S. at 508 (Brennan, J., dissenting); see also, Jenkins, 179 F.3d 19. He then continued by stating that "[t]he unanswered question is whether he loses the right to proceed under § 1983 if, as punishment for his alleged misconduct, his jailers have not only subjected him to unlawful segregation and thereby inflicted an injury that is compensable in damages, but have compounded the wrong by improperly depriving him of good-time credits. Three different approaches are possible." Preiser, 411 U.S. at 508 (Brennan, J., dissenting). Of the three alternatives suggested by Justice Brennan, one is that advocated by Plaintiff, one is that advocated by Defendant, and the third, which proposed that a claim challenging the conditions of confinement is sufficient to bring "related claims, including the question of good-time credits, under the umbrella of § 1983," id. at 510, is now foreclosed by Edwards, and, therefore, I need not discuss it.
With respect to the first alternative discussed, which happens to be the position advocated by Defendants, Justice Brennan wrote:
First, we might conclude that jurisdiction under § 1983 is lost whenever good-time credits are involved, even where the action is based primarily on the need for monetary relief or an injunction against continued segregation [as in the case at bar]. If that is the logic of the Court's opinion, then the scheme creates an undeniable, and in all likelihood irresistible incentive for state prison officials to defeat the jurisdiction of the federal courts by adding deprivation of good-time credits to whatever other punishment is imposed. And if all of the federal claims must be held in abeyance pending exhaustion of state remedies, a prisoner's subsequent effort to assert a damages claim under § 1983 might arguably be barred by principles of res judicata. To avoid the loss of his damages claim, a prisoner might conclude that he should make no mention of the good-time issue and instead seek only damages in a § 1983 action [as Gomez has done in this case]. That approach (assuming it would not be disallowed as a subterfuge to circumvent the [habeas corpus] exhaustion requirement) creates its own distressing possibilities. For having obtained decision in federal court on the issue of damages, the prisoner would presumably be required to repair to state court in search of his lost goodtime credits, returning once again to federal court if his state court efforts should prove unavailing.Id. at 508-509 (alterations added).
According to Defendants this is a real concern. They argue that if Plaintiff were to prevail on a claim challenging his segregated confinement, they will have no choice but to reinstate Plaintiff's lost good-time credits. See, e.g., Clarke, 154 F.3d at 190 (noting the preclusive effect and binding nature of a federal court decision on state courts); Clayton-EL v. Fisher, 96 F.3d 236, 243 (7th Cir. 1996) ("If Clayton-EL proved in a § 1983 action that the result of the disciplinary process was invalid, this proof would have preclusive effect in a state court habeas corpus action that challenged the rescission of his good-time credits. Because the federal courts must let state courts have the first chance to determine all of the facts necessary to a habeas corpus claim, Clayton-EL could not bring a § 1983 claim that involved these facts until he had gone to state court and presented all of the issues cognizable in habeas corpus."). Assuming, without deciding, that Defendants are correct, allowing Plaintiff's claim enables him to avoid the thrust of Preiser, Heck and Edwards.
With respect to the second alternative, which is the same as the position argued by Plaintiff, Justice Brennan stated:
[Where] a prisoner's claim relates to good-time credits, he is required to exhaust state remedies; but he is not precluded from simultaneously litigating in federal court, under § 1983, his claim for monetary damages or an injunction against continued segregation. . . [T]his approach entails substantial difficulties — perhaps the greatest difficulties of the three. In the first place, its extreme inefficiency is readily apparent. For in many instances a prisoner's claims will be under simultaneous consideration in two distinct forums, even though the identical legal and factual questions are involved in both proceedings. Thus, if a prisoner's punishment for some alleged misconduct is both a term in solitary and the deprivation of good-time credits, and if he believes that the punishment was imposed pursuant to unconstitutional disciplinary procedures, he can now litigate the legality of those procedures simultaneously in state court (where he seeks restoration of good-time credits) and in federal court (where he seeks damages or an injunction against continued segregation). Moreover, if the federal court is the first to reach decision, and if that court concludes that the procedures are, in fact, unlawful, then the entire state proceeding must be immediately aborted, even though the state court may have devoted substantial time and effort to its consideration of the case. By the same token, if traditional principles of res judicata are applicable to suits under § 1983 . . . the prior conclusion of the state court suit would effectively set at naught the entire federal court proceeding.Id. at 510-511.
It is apparent from Justice Brennan's discussion that neither outcome is ideal. Perhaps that is why he advocated a third possibility which would allow all of these related claims to be pursued under § 1983. However, although it may have merit, this proposal is clearly contrary to current law. As such two options remain. Although I recognize the danger of creating incentives adverse to prisoners' rights which both Justice Brennan and Plaintiff fear is the inevitable result of adopting the first alternative, I am not prepared to assume that prison officials will deprive inmates of good-time credit without good cause and for no other reason than to deny them their rights under the law. In addition, I am convinced that a plaintiff in Gomez' position cannot successfully invalidate his segregated confinement without invalidating the loss of good-time credits where both punishments were administered for the same conduct and as part of the same sentence. Conceptually, Plaintiff cannot attack the one without in effect attacking the other. Thus, no matter how it is phrased or asserted, Plaintiff's claim does attack the validity of the disciplinary decision and does implicate the fact or length of his confinement. Moreover, to find otherwise would potentially, if not likely, result in conflicting decisions on the same subject by federal and state courts.
These conclusions notwithstanding, I need not and do not resolve this case on this basis. Counsel for Plaintiff has pointed out that Gomez is currently serving a sentence of 25 years to life. New York Correction Law § 803(1)(a) states in pertinent part:
Every person confined in an institution of the department or a facility in the department of mental hygiene serving an indeterminate or determinate sentence of imprisonment, except a person serving a sentence with a maximum term of life imprisonment, may receive time allowance against the term or maximum term of his sentence imposed by the court.
N.Y. Correct. Law § 803(1)(a) (McKinney 2000) (emphasis added). Since Gomez is serving a sentence with a maximum term of life, he may not receive time allowance against the term of his sentence. Accordingly, the deprivation of good-time credit in Gomez' case is meaningless. The Defendants cannot take from Plaintiff something Plaintiff does not have. For this reason, the length of Gomez' confinement is not and cannot be implicated by the outcome of this action. Whether Plaintiff prevails or loses, the length of his sentence is fixed. Thus if the Defendants' disciplinary decision were invalidated rendering unconstitutional both the deprivation of goodtime credits and the segregated confinement, Gomez's sentence will not be shortened nor will he be entitled to a speedier release. In this way, Gomez is governed by Jenkins because Gomez was effectively sentenced only to segregated confinement. This becomes a pure conditions of confinement case by default.
Defendants argue nevertheless that the amount of good-time credits earned and lost is calculated and remains on Gomez' record, and in the event that Plaintiff's maximum term is reduced in the future, the deprivation of good-time may be considered in determining the timing of his release. Defendants base this assertion on Jamison v. Dee, 2000 WL 502871 (S.D.N.Y. 2000). Although the plaintiff in that case was serving a sentence of 20 years to life when, as the result of a disciplinary hearing, he was deprived of good-time credits and confined in keeplock, Jamison was subsequently resentenced to a term of 9 to 18 years. Jamison argued that he was not eligible to earn good-time credits when such credits were taken away, and thus Edwards should not apply. The court responded:
Jamison's argument is unavailing. Regardless of whether such a suit would have affected his overall sentence at the time of the hearings, this section 1983 action now implicates the length of his sentence. It is thus not cognizable under section 1983 until the sentence is impugned by some other proceeding. The fact that the good-time credits were revoked prior to the resentencing in no way prevents the government from administering the decision. See Freeman v. New York Correction Dep't, 20 A.D.2d 825, 247 N.Y.S.2d 415, 416 (3d Dept. 1964).Jamison, 2000 WL 502871 at *2.
I disagree that Freeman v. New York State Correction Department stands for the proposition for which it was cited by the court in Jamison. "[G]ood-time credit may not be used to offset a life sentence." Bressette v. Travis, 659 N.Y.S.2d 818 (N.Y. A.D. 3 rd Dept. 1997); see also Curtis v. Pataki, 1997 WL 614285 at *6-7 (N.D.N.Y. 1997); N.Y. Correct. Law § 803(1)(a). Since a prisoner serving a sentence with a maximum term of life cannot accumulate good-time, it seems entirely unfair, if not theoretically impossible, to withhold, forfeit or cancel such time allowances. However, if a record of deprivation of good-time is kept for inmates serving a life sentence for future application in the case of a resentencing, a record should also be kept of the good-time that would have been earned had the prisoner's maximum term not been life. Nevertheless, assuming arguendo that a prisoner serving a sentence with a maximum term of life may be deprived of good-time credits, and that that loss may be counted against an early release for good-time should the prisoner be resentenced to a lesser term, the fact remains that unlike Jamison, Gomez has not been resentenced. He was and still is ineligible to receive time allowance against his sentence. Accordingly, the length of his sentence is wholly unaffected by this action. Neither party has suggested any reason nor is there any indication that Gomez will be resentenced. Therefore, it would be entirely inappropriate to treat Plaintiff's claim as one attacking the fact or length of his confinement merely because it is conceivable, albeit a remote possibility, that he could be resentenced and the length of that as yet nonexistent sentence might be affected.
Freeman involved the forfeiture of good-time already earned as a result of parole violations. The plaintiff was subsequently resentenced and the defendant continued to enforce the forfeiture upon resentencing, that is, the new sentence was not reduced by the amount of good-time previously earned and lost. Freeman challenged the loss of good time arguing that any time served on the original sentence must be credited to the new sentence. The court held that nothing in the law entitled Freeman to a restoration of good-time forfeited simply because the prisoner was resentenced. Freeman v. New York State Correction Dept., 247 N.Y.S.2d 415 (N.Y. A.D. 3rd Dept. 1964). The crucial distinction is that when the good-time credits were revoked Freeman was entitled to earn good-time as the maximum term of Freeman's original sentence was not life, so that the forfeiture was effective immediately. This is quite different than holding that prisoners who are not entitled to earn good-time may nonetheless be deprived of good-time credits so that such deprivation may be administered at some later date in the event that there comes a time in the future when the prisoner is eligible to earn good-time.
For the foregoing reasons, Defendants' motion to dismiss the action is denied.
III
Defendants move in the alternative to dismiss the action as barred under the Eleventh Amendment. The Second Circuit has summarized the applicability of Eleventh Amendment immunity to state officials in Defendants' position sued under § 1983:
The Eleventh Amendment, with few exceptions, bars federal courts from entertaining suits brought by a private party against a state in its own name. . . . The immunity to which a state's official may be entitled in a § 1983 action depends initially on the capacity in which he is sued. To the extent that a state official is sued for damages in his official capacity, such a suit is deemed to be a suit against the state, and the official is entitled to invoke the Eleventh Amendment immunity belonging to the state. As to a claim brought against him in his individual capacity, however, the state official has no Eleventh Amendment immunity.Ying Jing Gan v. City of New York, 996 F.2d 522, 529 (2nd Cir. 1993) (internal citations omitted).
Plaintiff has clearly sued Defendants in both their official and individual capacities. (See Complaint, attachment p. 5, ¶ 14). To the extent Plaintiff has sued the Defendants in their official capacity, such claims are dismissed as barred by the Eleventh Amendment. However, the Eleventh Amendment does not provide any immunity to Defendants insofar as they are sued in their individual capacities. These claims survive in spite of the dismissal of the official capacity claims. See, e.g., Farid v. Smith, 850 F.2d 917, 921 (2nd Cir. 1988) (holding that although Eleventh Amendment bars claims against defendant in official capacity, it does not bar action against defendant in individual capacity); Mulligan v. Travis, 1999 WL 759980 at *5 (E.D.N.Y. 1999) (same); Erwin v. Russi, 1998 WL 474096 at *4 (S.D.N.Y. 1998) (same).
An official sued in his individual capacity may assert a defense based on qualified immunity. See Yin Jing Gan, 996 F.2d at 529. In Gomez I, I considered and rejected Defendants' invocation of qualified immunity. Defendants have not moved for reconsideration of that decision. However, if they had, not only would the motion be untimely, since motions for reconsideration must be served within ten days of the docketing of the court's determination of the original motion pursuant to Local Civil Rule 6.3, but I am unaware of, and Defendants do not suggest any, controlling decision or factual matter that I overlooked in rendering the original decision.
Perhaps aware of the procedural and substantive bars to a reconsideration motion, Defendants now argue that "despite plaintiff's characterization to the contrary, [Defendants] are being sued based on actions they took exclusively in their official capacities." (Memorandum of Law in Support of Defendants' Motion to Dismiss, p. 14 n. 4). Consequently, Defendants argue, the entire action should be dismissed as barred by the Eleventh Amendment. Defendants' dismissal of the clear intentions expressed in the complaint is unwarranted. As an initial matter, although he now has the benefit of counsel, Gomez initiated this action pro se. "It is well-established that pro se complaints are to be construed liberally in favor of the pro se litigant." Tapia-Ortiz v. Doe, 171 F.3d 150, 152 (2nd Cir. 1999). Even if Plaintiff were held to the same standards as other litigants, the complaint unequivocally expresses his intention to sue Defendants in both their official and individual capacities.
Defendants suggest that because they were acting within the scope of their duties, they were necessarily acting in their official capacities. Defendants maintain that they would be subject to suit only if they had exceeded their authority. In effect, Defendants contend that "§ 1983 liability turns not on the capacity in which state officials are sued, but on the capacity in which they acted when injuring the plaintiff" Hafer v. Melo, 502 U.S. 21, 27 (1991). However, the Supreme Court rejected this precise theory in Hafer v. Melo. The Court explained that "Congress enacted § 1983 to enforce provisions of the Fourteenth Amendment against those who carry a badge of authority of a State and represent it in some capacity, whether they act in accordance with their authority or misuse it" Id. at 28 (internal quotations and citations omitted). Summarizing its holding, the Court stated that "[t]he Eleventh Amendment does not bar such suits, nor are state officers absolutely immune from personal liability under § 1983 solely by virtue of the 'official' nature of their acts." Id. at 31; see also, Farid, 850 F.2d at 921 ("[t]he court has consistently held that the eleventh amendment does not protect state officials from personal liability when their actions violate federal law, even though state law purports to require such actions.").
Defendants also argue that they are in effect "sham" parties, and that the real target of Plaintiff's suit is the State Treasury. There is no basis for this conclusory allegation. "'[T]he rule has evolved that a suit by private parties seeking to impose a liability which must be paid from public funds in the state treasury is barred by the Eleventh Amendment.'" Trotman v. Palisades Interstate Park Commission, 557 F.2d 35, 38 (2nd Cir. 1977) (quoting Edelman v. Jordan, 415 U.S. 651, 663 (1974)). However, this is not such a case. To the extent that the parties are sued in their individual capacities, any damage award is targeted at the officials' personal assets. The liability does not have to be paid from public funds. Even if the state chose to pay, "[t]he law is clear that a state's voluntary decision to indemnify its public servants does not transform a personal-capacity action against a state official into an official-capacity action against the state." Farid, 850 F.2d at 923.
For the reasons state above Defendants' motion to dismiss the action as barred by the Eleventh Amendment is granted in part and denied in part. To the extent the suit is brought against Defendants in their official capacities, Defendants are entitled to Eleventh Amendment immunity and the action is dismissed. To the extent the suit is brought against Defendants in their individual capacities, Defendants are not entitled to invoke the protection of the Eleventh Amendment and Plaintiff's claims survive.
IV
Since Defendants' motion to dismiss the action in its entirety is denied, the summary judgment award on the issue of liability, which was reinstated pursuant to a Stipulation and Order dated September 30, 1999, remains in effect and is final. Counsel for the parties are directed to attend a status conference to discuss how to proceed with the issue of damages on October 27, 2000 at 500 Pearl Street, Room 17C.
It is SO ORDERED.