Opinion
01 Civ. 9590 (KMW)(FM)
February 14, 2003
REPORT AND RECOMMENDATION TO THE HONORABLE KIMBA M. WOOD
In this civil rights action pursuant to 42 U.S.C. § 1983, pro se plaintiff Eric McCarthy seeks money damages and other relief as a consequence of the 207 days that he spent in the Special Housing Unit ("SHU") at the Mid-State Correctional Facility ("Mid-State") following an alleged incident at the Green Haven Correctional Facility ("Green Haven") where he had previously been lodged. Defendant D. Carey, a Correction Officer at Green Haven, filed the misbehavior report that led to the imposition of this sanction; defendant J. Yost was the hearing officer who presided at McCarthy's disciplinary hearing. Yost's finding that McCarthy was guilty was later reversed on appeal on the ground that the misbehavior report did not contain sufficient information for McCarthy to defend against the rule violation charged.
Both defendants have now moved to dismiss McCarthy's Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim for relief. For the reasons set forth below, I recommend that the motion be granted in part and denied in part. More specifically, the Amended Complaint should be dismissed against Carey; the first and second claims for relief should be dismissed against Yost; and the sixth claim for relief should be dismissed insofar as its seeks relief on the basis of an alleged Eighth Amendment violation. Insofar as Yost seeks the dismissal of any other claims, his motion should be denied.
I. Factual Background
The facts alleged in the Amended Complaint, which must be taken as true for present purposes, may be summarized as follows:
On or about December 24, 1999, Carey prepared and filed a misbehavior report which charged that McCarthy had violated Rule 104.12 of the Department of Correctional Services ("DOCS"), 7 N.Y.C.R.R. § 270.2(B)(5)(iii)("Rule 104.12"), which states that "[i]nmates shall not lead, organize, participate, or urge other inmates to participate in work-stoppages, sit-ins, lock-ins, or other actions detrimental to the order of the facility." (Am. Com pl. Ex. A). Carey's report alleged that "[a]s a result of an ongoing investigation into a planned inmate labor strike to occur on or about 01-01-00, inmate McCarthy has been identified as having violated [Rule 104.12] by urging other inmates to participate in the strike." (Id.). As a consequence of this charge, McCarthy was confined to his G reen Haven cell and was transferred to Mid-State a few days later. (Am. Compl. ¶¶ 1-2). Upon his arrival at Mid-State, McCarthy was served with a copy of the misbehavior report. (Id. ¶ 3).
The Amended Complaint ("Amended Complaint" or "Am. Compl.") does not contain the exhibits annexed to McCarthy's original Complaint ("Complaint" or "Compl."). Indeed, McCarthy has deleted any references to those exhibits in the later pleading. Nevertheless, to ensure that McCarthy's factual allegations are as complete as possible, I have assumed for purposes of this Report and Recommendation that the exhibits annexed to the original Complaint are also part of his Amended Complaint. In their motion papers, the defendants have indulged in the same assumption. (See Def'ts' Mem. of L. at 2 n. 1). (The exhibits are hereinafter referred to as "Ex. ___").
Pursuant to 7 N.Y.C.R.R. § 251-2.2(b)(3), officials at Mid-State decided to conduct a Tier III "Superintendant's Hearing" with respect to this charge. (Id. ¶ 4). The Superintendent of Mid-State designated Yost to serve as the hearing officer for this hearing. (Id. ¶¶ 4-5).
A violation of Rule 104.12 may be adjudicated through either a "Tier II" or a "Tier III" hearing. See 7 N.Y.C.R.R. § 270(2)(B)(5)(iii). If the violation is designated for Tier II treatment, the maximum period of confinement to a cell or the SHU is thirty days. Id. § 253.7(a)(1)(iii). A Tier III hearing may result in a longer period of confinement. Id. § 254.7(a)(1)(iii).
An inmate confined pending a Superintendent's Hearing is entitled to select an employee from an established list to provide him with assistance. 7 N.Y.C.R.R. § 251-4.1(a). McCarthy chose Sergeant Miranda as his employee assistant. (Ex. E at 9). The role of an employee assistant is to "speak with the inmate charged, to explain the charges to the inmate, [to] interview witnesses[,] and to report the results of his efforts to the inmate." 7 N.Y.C.R.R. § 251-4.2. The employee assistant may also be asked to help the inmate obtain documentary evidence or written statements necessary for his defense. Id. McCarthy asked that Miranda provide him with the annotations to Chapter 5 of Title 7 of the Official Compilation of Codes, Rules and Regulations of New York State, which sets forth the procedures for implementing standards of Inmate behavior. (Ex. E. at 9). McCarthy also asked Miranda to interview Carey, Correction Officer Percell, and Sergeant Shallow as potential witnesses. (Id.).
The Superintendent's Hearing began on December 30, 1999, and concluded on January 7, 2000. (Am. Compl. ¶ 6). At the conclusion of the hearing, Yost determined that McCarthy had committed the infraction charged and sentenced him to 360 days in the SHU, during which he also was to be denied his package, commissary, and phone privileges. (Id. Ex. B).
Pursuant to 7 N.Y.C.R.R. § 254.8, McCarthy timely appealed Yost's determination to DOCS Commissioner Glenn S. Goord and his designee, SHU Director Donald Selsky. (Am. Compl. ¶ 8). On March 15, 2000, Selsky affirmed the results of the Superintendent's Hearing. (Id. Ex. D). Thereafter, an attorney at Prisoner's Legal Services of New York submitted an extensive "Supplemental Appeal" to Selsky, which argued that (a) Yost's finding of guilt was not supported by substantial evidence, (b) McCarthy was denied the opportunity to present a defense because he lacked sufficient information regarding the charge against him, and (c) Sergeant Miranda's assistance was inadequate. (See Ex. E).
On October 10, 2000, Selsky reversed Yost's decision on the ground that the misbehavior report did not contain sufficient information. (Ex. F). As a consequence, the records relating to Carey's charge and the subsequent disciplinary proceeding were expunged. (Id.). Before that took place, however, McCarthy had spent 207 days in the SHU. (Am. Compl. ¶ 17). Among other relief, McCarthy seeks $1,000 in compensatory damages and $5,000 in punitive damages for each day that he was confined to the SHU. (Id. ¶ 23).
II. Subsequent Events
McCarthy's Complaint was received by the Pro Se Office of this Court on or about September 28, 2001. (Docket No. 2). After the nine named defendants moved for its dismissal, pursuant to Rules 12(b)(1) and (b)(6) of the Federal Rules of Civil Procedure, McCarthy sought leave to file the Amended Complaint, which was granted, on consent, on April 29, 2000. Rather than answering the Amended Complaint, the two remaining defendants — Carey and Yost — filed a new motion to dismiss on May 13, 2002. (Docket No. 22). McCarthy submitted an affidavit in opposition to that motion in early July 2002. (See Docket No. 27).
The affidavit was mailed to the Court on July 10, but was not filed with the Clerk of the Court until September 19, 2002. (Id.).
The Amended Com plaint asserts six claims for relief. Liberally construed, the first five claims for relief allege that both defendants violated McCarthy's Fourteenth Amendment due process rights. In his first claim for relief, McCarthy alleges that he was required to respond to charges set forth in a facially inadequate misbehavior report. (Am. Compl. ¶¶ 10-11). The second claim for relief alleges that Yost's determination was not based on substantial evidence. (Id. ¶¶ 12-13). The third claim for relief alleges that the confidential informant's information was not independently assessed (id. ¶¶ 14-15); the fourth, that McCarthy received inadequate employee assistance (id. ¶¶ 16-17); and the fifth, that McCarthy's right to defend himself and present evidence was infringed (id. ¶¶ 18-19). In his sixth and final claim for relief, McCarthy alleges that his confinement in the SHU for 207 days before Yost's determination was set aside constituted cruel and unusual punishment and violated his substantive and procedural due process rights, in violation of the Eighth and Fourteenth Amendments. (Id. ¶¶ 20-23).
The sixth claim for relief also cites the Fifth Amendment as a basis for relief. The Due Process Clause of the Fifth Amendment is plainly inapplicable to the state actors named as defendants in the Amended Complaint. See Bartkus v. Illinois, 359 U.S. 121, 124, 79 S.Ct. 676, 678, 3 L.Ed.2d 684 (1959).
III. Standard of Review
In evaluating a Rule 12(b)(6) motion to dismiss for failure to state a claim, the Court must accept as true all factual allegations made in the complaint and draw all reasonable inferences in favor of the plaintiff. See Leatherman v. Tarrant County Narcotics Intelligence Coordination U nit, 507 U.S. 163, 164, 113 S.Ct. 1160, 1161, 122 L.Ed.2d 517 (1993); Harris v. City of New York, 186 F.3d 243, 247 (2d Cir. 1999); Bolt Elec., Inc. v. City of New York, 53 F.3d 465, 469 (2d Cir. 1995). The court may grant the motion only when "it appears beyond doubt . . . that the plaintiff can prove no set of facts [in support of his claim] which would entitle him to relief." Sec. Investor Prot. Corp. v. BDO Seidman, L.L.P., 222 F.3d 63, 68 (2d Cir. 2000) (quoting Jaghory v. New York State Dep't of Educ., 131 F.3d 326, 329 (2d Cir. 1997)); Walker v. City of New York, 974 F.2d 293, 298 (2d Cir. 1992).
Moreover, when a plaintiff is proceeding pro se, as here, the complaint must be held "to less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972) (per curiam). Accordingly, the allegations must be read "liberally" and interpreted "to raise the strongest arguments that they suggest." Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). This principle applies with particular force in cases such as this in which a pro se plaintiff alleges violations of his civil rights. See, e.g., Weinstein v. Albright, 261 F.3d 127, 132 (2d Cir. 2001); Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993); Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991).
IV. Discussion
A. Carey
As the Amended Complaint makes clear, Carey prepared the misbehavior report accusing McCarthy of instigating a labor stoppage. (Am. Compl. ¶ 1). Although that report served as the charging instrument, it is apparent from the face of the Amended Complaint, and the exhibits, that Carey did not participate in the subsequent hearing. (Id. ¶¶ 5-7, Exs. B, C).
It is settled law that an inmate has "no general constitutional right to be free from being falsely accused in a misbehavior report." Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir. 1997) (citing Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir. 1986)). Obviously, if Carey's filing of an intentionally false report would not be actionable, his filing of an insufficiently specific report against McCarthy could not possibly give rise to a due process violation.
Once the report was filed, McCarthy had a constitutional right to adequate due process before he was deprived of any liberty interest. Rideout, 808 F.2d at 951. McCarthy does not allege, however, that Carey was involved in any aspect of the disciplinary proceedings other than the filing of the accusatory instrument. It follows that the Amended Complaint must be dismissed as against Carey because it fails to allege any conduct on his part that could give rise to a denial of McCarthy's constitutional rights.
B. Yost
Yost is named in all six claims for relief. Some of these claims are legally insufficient; others cannot be resolved at this preliminary stage. Each is considered below.
1. Inadequate Misbehavior Report
In the first claim for relief, Yost is accused of having subjected McCarthy to an insufficiently specific misbehavior report. (Am. Compl. ¶¶ 10-11). This claim fails, as a matter of law, for two reasons. First, there is no allegation that Yost played any role whatsoever in the preparation of the report. (See Am. Compl. ¶ 1 ("Defendant Carey wrote and filed [the] Misbehavior Report") Ex. A (indicating that the rule violation was "[r]eported by" Carey)). Moreover, as noted above, even if Yost were shown to be a co-author of the report, his conduct would not give rise to any due process violation.
2. Adequacy of the Evidence
McCarthy's second claim for relief alleges that both the misbehavior report and the findings made by Yost at the conclusion of the Superintendent's Hearing were not supported by "substantial evidence." (Am. Compl. ¶ 13). His third claim for relief is that the confidential informant's information was not independently assessed. (Id. ¶ 15).
The substantial evidence standard is a creature of New York law. See N.Y. C.P.L.R § 7803(4). When a federal court is asked to review prison disciplinary proceedings which are alleged to have improperly led to the denial of a liberty interest, the standard is considerably less stringent, requiring the Court to determine only "whether there is any evidence in the record that could support the conclusion reached" by the hearing officer. Superintendent v. Hill, 472 U.S. 445, 455-56, 105 S.Ct. 2768, 2774, 86 L.Ed.2d 356 91985) (emphasis added). If the record confirms the existence of "some evidence" from which the hearing officer's determination could be deduced, the requirements of due process are met. Id.; Gaston v. Coughlin, 249 F.3d 156, 163 (2d Cir. 2001); Kalwasinski v. Morse, 201 F.3d 103, 108 (2d Cir. 1999).
N.Y. C.P.L.R § 7803 provides that the only questions that a court may consider in reviewing an administrative determination are:
1. whether the body or officer failed to perform a duty enjoined upon it by law; or
2. whether the body or officer proceeded, is proceeding or is about to proceed without or in excess of jurisdiction; or
3. whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of penalty or discipline imposed; or
4. whether a determination made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law is, on the entire record, supported by substantial evidence.
In this case, Yost's handwritten decision indicated that he
[r]elied upon Inmate Misbehavior Report written by C.O. Carey, testimony by C.O.P. Williams Lt. Schneider of Green Haven C.F.[,] who were involved in the investigation and testified confirming [c]onfidential information provided in writing to the hearing officer[,] which is part of the hearing packet, as well as inmate McCarthy's other witness' testimony.
(Ex. C at 2). Yost also noted in his decision that the "[c]onfidential infor[mation] is believed to be credible." (Id.). Although these entries establish that there was "some evidence" supporting Yost's finding of guilt, the summary is insufficiently detailed to establish that Yost in fact heard testimony which established that the confidential informant's allegations were credible.
Accordingly, insofar as McCarthy seeks relief in this action based upon the lack of "substantial evidence," his Amended Complaint fails to state a claim as a matter of law. Nevertheless, insofar as McCarthy suggests that the informant was not corroborated, or that Yost engaged in an inadequate assessment of the informant's credibility, the resolution of his claim requires a review of the facts which is inappropriate at this time. For these reasons, the second, but not the third, claim for relief should be dismissed.
3. Inadequate Employee Assistance
McCarthy's fourth claim for relief alleges that he received inadequate employee assistance. As the Supreme Court has recognized, an inmate is not entitled to the same degree of procedural protection as a citizen at large. See Hill, 472 U.S. at 454-55, 105 S.Ct. at 2773-74. At a minimum, however, when an inmate is charged with a disciplinary violation which is to be resolved at a Tier III hearing, due process requires that:
(1) the inmate receive at least twenty-four hours written notice of the disciplinary charges against him; (2) the inmate be permitted to call witnesses and present evidence "when permitting him to do so would not be unduly hazardous to institutional safety or correctional goals"; (3) the inmate be judged by a fair and impartial hearing officer; (4) the disciplinary conviction be supported by some evidence; and (5) the inmate be provided with a written statement of fact findings that support the disposition as well as the reasons for the disciplinary action taken.
Samuels v. Selsky, 2002 WL 31040370, at *11 (S.D.N.Y. Sept. 12, 2002) (quoting Espinal v. Goord, 180 F. Supp.2d 532, 538 (S.D.N.Y. 2002) (citing Wolff v. McDonnell, 418 U.S. 539, 566, 94 S.Ct. 2963, 2979, 41 L.Ed.2d 935 (1974)); accord, Knight v. Keane, 2002 WL 31426209, at *5 (S.D.N.Y. Oct. 16, 2002).
In addition, inmates who are unable to marshal the evidence and present their own defense are entitled to assistance. Silva v. Casey, 992 F.2d 20, 22 (2d Cir. 1993). For that reason, the regulations promulgated by the DOCS provide that an inmate, such as McCarthy, who is "confined pending a superintendent's hearing" is entitled to select an assistant from an established list of prison employees. 7 N.Y.C.R.R. § 251-4.1(a)(4). "The assistant's role is to speak with the inmate charged, to explain the charges to the inmate, [to] interview witnesses and to report the results of his efforts to the inmate." Id. § 251-4.2. The assistant may also help the inmate obtain needed documents or written statements. Id.
McCarthy's Amended Complaint does not specify the ways in which Sergeant Miranda's services allegedly fell short of the mark. The Supplemental Appeal states, however, that McCarthy asked to be furnished with the annotations to the relevant provisions of the Official Compilation and that Correction Officers Carey and Powell and Sergeant Shallow be interviewed. (Ex. E at 9). If so, McCarthy was also entitled to learn the results of Miranda's interviews. See 7 N.Y.C.R.R. § 251-4.2.
The Supplemental Appeal indicates that McCarthy objected at the hearing that he "was never given the annotations." (Ex. E at 9). If that was the full extent of McCarthy's objection, he may have waived any claim with respect to the witness interviews. From the pleadings and exhibits alone, it is impossible to determine this with any degree of certainty. Moreover, although the Supplemental Appeal suggests that all three of McCarthy's proposed interviewees were called as witnesses, Yost's decision makes mention of only Carey. It therefore is impossible to determine from the decision the role that the testimony of any of these witnesses played in Yost's finding of guilt. In these circumstances, the Court cannot say as a matter of law that McCarthy's claim of ineffective employee assistance is meritless.
4. Adequacy of the Misbehavior Report
In his fifth claim for relief, McCarthy contends that his right to defend himself and present evidence was infringed. (Am. Compl. ¶ 19). The gravamen of this claim appears to be that the misbehavior report provided insufficient information for McCarthy to defend himself against Carey's allegations.
Where, as here, the charges against an inmate arise out of information obtained from a confidential informant, prison officials must tread a thin line. Too much disclosure could imperil the informant's safety, but too little could render the notice meaningless. The degree of specificity required also may vary depending upon the inmate's degree of familiarity with the alleged infraction. An accusation that an inmate participated in a notorious incident may, at times, require less detailed notice than would otherwise be appropriate.
Under any circumstances, the notice of the charges must be "more than a mere formality." Taylor v. Rodriguez, 238 F.3d 188, 192 (2d Cir. 2001). The notice must be sufficiently specific that the inmate can prepare a defense and "not be made to explain away vague charges." Id. at 192-93.
In Taylor, the plaintiff was served with a misbehavior report which charged that he was a member of a security risk group based on his "past admission to outside law enforcement about involvement with Latin Kings/recent tension in B-Unit involving gang activity/statements by independent confidential informants." Id. at 190. The Second Circuit found this notice impermissibly vague because it failed to allege any specific facts that the plaintiff inmate could controvert.
On the other hand, in Hameed v. Mann, 849 F. Supp. 169 (N.D.N.Y. 1994), the plaintiff inmate was charged with a violation of Rule 104.12, the very rule at issue here. The misbehavior report stated that Hameed's infraction had occurred "[b]eginning with the A.M. program period on Wednesday 10/5/88," when he and every other inmate in his housing unit had refused to leave their cells during program periods and had engaged in other specified disruptive activities. Id. at 173 n. 1. This notice was determined to be adequate even though it was a form notice issued to every inmate in the unit and did not specify that the plaintiff was being charged as a leader of the strike.
In this case, the misbehavior report is considerably more vague than the notice in Hameed. Although the report apparently was issued in connection with a planned "Y2K" protest, see Samuels, 2002 WL 31040370, at *2; Paul Grondahl, Activist Barred From Prisons, Albany Times Union, June 1, 2000, at B9, there is no specification of when or where McCarthy's importuning of his fellow inmates allegedly occurred. DOC officials have, however, provided such details in at least one other case involving a violation of Rule 104.12. See Prince v. Edwards, 2000 WL 633382, at *1 (S.D.N.Y. May 17, 2000) (accusing plaintiff of "working his way past the inmates in the south yard, shaking their hands, patting them on the shoulder as he spoke with them and greeting the inmate propulation as they passed by him.") (internal quotation marks omitted).
On the present record, the Court cannot rule out the possibility that McCarthy was prejudiced by the vagueness of the misbehavior report. Indeed, that appears to be the basis on which Selsky set aside Yost's determination that McCarthy was guilty of the rule violation charged. McCarthy is therefore entitled to pursue this claim.
5. SHU Confinement
McCarthy's final claim is that his placement in the SHU for a period of 270 days before Selsky reversed Yost's decision constituted cruel and unusual punishment and a denial of due process in violation of his Eighth and Fourteenth Amendment rights.
McCarthy's Eighth Amendment claim fails for at least three reasons. First, it does not rise to the level of a constitutional violation. To violate the Eighth Amendment, a prison condition must be "objectively 'sufficiently serious.'" Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 1977, 128 L.Ed.2d 811 (1994) (quoting Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 2324, 115 L.Ed.2d 271 (1991)). The prison official must also be deliberately indifferent to the inmate's health or safety. Id. Here, there is no question that McCarthy's confinement in the SHU was onerous. In his original Complaint, McCarthy recited a long list of the deprivations to which he was subjected in the SHU, (see Compl. ¶ 11), many of which have also been chronicled by judges of this Court. See, e.g., Lee v. Coughlin, 26 F. Supp.2d 615, 623-26 (S.D.N.Y. 1998) (detailing conditions at the Sing Sing and Southport Correctional Facility SHUs). Despite these extensive restrictions, however, it is clear that the mere act of confining an inmate in a SHU does not violate the Eighth Amendment. See Anderson v. Coughlin, 757 F.2d 33, 35 (2d Cir. 1985).
Second, even if conditions at the Mid-State SHU were shown to offend constitutional norms, McCarthy has not alleged, as he must, that he exhausted his administrative remedies with respect to this Eighth Amendment claim. See 42 U.S.C.
1. § 1997e(a).
Finally, to the extent that he seeks to recover money damages, McCarthy also has not alleged that he sustained a "physical injury" as a consequence of his confinement in the SHU. See 42 U.S.C. § 1997e(e)("No Federal civil action may be brought by a prisoner . . . for mental or emotional injury suffered while in custody without a prior showing of physical injury"). "Courts have strictly construed this requirement, barring claims by prisoners who demonstrate solely emotional or mental injury and barring physical injury claims where the injury alleged is de minim[i]s." Porter v. Coombe, 1999 WL 587896, at *2 (S.D.N.Y. Aug. 4, 1999).
Turning to his Fourteenth Amendment claim, McCarthy apparently alleges that he was deprived of a liberty interest without due process of law. However, an inmate has a cognizable liberty interest under the Fourteenth Amendment only when its deprivation imposes upon him an "atypical and significant hardship . . . in relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 2300, 132 L.Ed.2d 418 (1995). In Sandin, the Supreme Court held that thirty days of disciplinary segregation, "though concededly punitive," was not the sort of "dramatic departure from the basic conditions" of confinement which would "present the type of atypical, significant deprivation in which a State might conceivably create a liberty interest." Id. at 485-86, 115 S.Ct. at 2301.
Following Sandin, the Second Circuit has observed that
for a liberty interest to be protectable, the plaintiff "must establish both that the confinement or restraint creates an 'atypical and significant hardship' under Sandin, and that the state has granted its inmates, by regulation or by statute, a protected liberty interest in remaining free from that confinement or restraint." Frazier v. Coughlin, 81 F.3d 313, 317 (2d Cir. 1996).
Hynes v. Squillace, 143 F.3d 653, 658 (2d Cir. 1998).
In determining the severity of the hardship imposed by an inmate's conditions of confinement, it is appropriate to take into account both "the duration and the frequency of such deprivations." Taylor, 238 F.3d at 195 (quoting Welch v. Bartlett, 196 F.3d 389, 393 (2d Cir. 1999)). Applying those criteria, "courts in the Second Circuit have consistently found that short periods of punitive or administrative confinement in areas removed from the general prison population [do] not constitute an atypical, significant hardship implicating a protected liberty interest." Thomas v. Irvin, 981 F. Supp. 794, 799 (W.D.N.Y. 1997). Indeed, the denial of privileges for periods of 101 days or less has typically been found not to give rise to an atypical and significant hardship. See, e.g., Sealey v. Giltner, 197 F.3d 578, 588-89 (2d Cir. 1999) (101 days in administrative segregation); Williams v. Goord, 111 F. Supp.2d 280, 289 (S.D.N.Y. 2000) (75 days of solitary); Jackson v. Johnson, 15 F. Supp.2d 341, 361-62 (S.D.N.Y. 1998) (99 days in keeplock); Harris v. Keane, 962 F. Supp. 397, 403-04 (S.D.N.Y. 1997) (23 days in keeplock); Gill v. Pact Org., 1997 WL 539948, at *10 (S.D.N.Y. Aug. 28, 1997) (26 days of administrative segregation without exercise). McCarthy's confinement was considerably longer and, consequently cannot be dismissed, as a matter of law, as a routine incident of prison life. But see Carter v. Carriero, 905 F. Supp. 99, 104 (W.D.N.Y. 1995) (suggesting that penalty of 270 days in the SHU does not give rise to a liberty interest). Moreover, through its regulations, DOCS appears to have recognized an inmate's right not to be assigned to the SHU for an extended period without an adequate hearing.
McCarthy's sixth claim for relief therefore appears to be legally sufficient insofar as he relies upon the Fourteenth Amendment as a basis for challenging his confinement in the SHU.
6. Qualified Immunity
Yost also seeks dismissal of the Amended Complaint on the ground that he is entitled to qualified immunity. (Def'ts' Mem. of L. at 17-19). "Under the doctrine of qualified immunity, a government official performing discretionary functions is shielded from liability for civil damages if his conduct did not violate plaintiff's clearly established rights or if it would have been objectively reasonable for the official to believe that his conduct did not violate plaintiff's rights." Mandell v. County of Suffolk, 316 F.3d 368, 385 (2d Cir. 2003). However, "the defense of qualified immunity protects only individual defendants sued in their individual capacity . . ., and it protects only against claims for damages, not against claims for equitable relief." Rodriguez v. City of New York, 72 F.3d 1051, 1065 (2d Cir. 1995).
A ruling on Yost's qualified immunity defense at this early stage would be premature. As shown above, by the time of McCarthy's disciplinary hearing, it was well established that an inmate is entitled to minimal due process before being confined in the SHU for an extended period. Whether McCarthy received the process he was due requires a more detailed inquiry into the events leading up to the misbehavior report and what transpired at the Superintendent's Hearing. Until these issues have been explored, the Court is not in a position to determine whether McCarthy's clearly established rights were infringed or if it was objectively reasonable for Yost to conclude that his actions were proper.
V. Conclusion
For the foregoing reasons, the defendants' motion should be granted in part and denied in part. More specifically, the Amended Complaint should be dismissed as against Carey; the first and second claims for relief should be dismissed as against Yost; and the sixth claim for relief should be dismissed insofar as its seeks relief on the basis of an alleged Eighth Amendment violation. The motion should be denied insofar as Yost seeks the dismissal of any other claims.
VI. Notice of Procedure for Filing of Objections to this Report and Recommendation
The parties are hereby directed that if they have objections to this Report and Recommendation, they must, within ten days from today, make them in writing, file them with the Clerk of the Court, and send copies to the chambers of the Honorable Kimba M. Wood and to the chambers of the undersigned, at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b). Any requests for an extension of time for filing objections must be directed to Judge Wood. The failure to file timely objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b).