Proctor v. LeClaire
OPINION, the district court judgment is vacated and remanded, by RAK, RCW, PWH, FILED. [15-3673]
Case 15-3673, Document 90-1, 01/24/2017, 1953059, Page1 of 31
Proctor v. LeClaire, et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2016
(Argued: September 21, 2016 Decided: January 24, 2017)
Docket No. 15‐3673
LUCIEN J. LECLAIRE, JR., former Deputy Commissioner,
Department of Corrections and Community Supervision,
BRIAN FISCHER, former Commissioner, Department of
Corrections and Community Supervision, ANTHONY J.
ANNUCCI, Acting Commissioner, Department of
Corrections and Community Supervision, JOSEPH
BELLNIER, Deputy Commissioner, Department of
Corrections and Community Supervision,
The Clerk of Court is respectfully directed to amend the official
caption in this case as it appears above.
Case 15-3673, Document 90-1, 01/24/2017, 1953059, Page2 of 31
KATZMANN, Chief Judge, WESLEY and HALL, Circuit Judges.
Appeal from an order of the United States District Court
for the Northern District of New York (Sharpe, J.), granting
summary judgment for Defendants‐Appellees. Plaintiff‐
Appellant Patrick Proctor, an inmate who has been held in
solitary confinement for over two decades and is currently under
Administrative Segregation, filed this 42 U.S.C. § 1983 claim for
deprivations of procedural and substantive due process. We
conclude that triable issues of fact remain as to whether Proctor
was denied the meaningful periodic reviews of his
Administrative Segregation that procedural due process
requires. We also conclude that the District Court erred in
granting summary judgment sua sponte without adequate notice
on Proctor’s substantive due process claim. VACATED and
ELLIOT HARVEY SCHATMEIER (Timothy Gilman, on the
brief), Kirkland & Ellis LLP, New York, NY, for
BRIAN D. GINSBERG, Assistant Solicitor General (Barbara D.
Underwood, Solicitor General, Andrea Oser, Deputy
Solicitor General, on the brief), for Eric T.
Schneiderman, Attorney General of the State of New
York, Albany, NY, for Defendants‐Appellees.
Case 15-3673, Document 90-1, 01/24/2017, 1953059, Page3 of 31
WESLEY, Circuit Judge:
Plaintiff‐Appellant Patrick Proctor is an inmate in the
custody of the New York State Department of Corrections and
Community Supervision (“DOCCS”), serving a sentence of
thirty‐two‐and‐one‐half years to life for second‐degree murder,
robbery, and attempted escape. He is confined in the Special
Housing Unit (the “SHU”), or, as it is better known, solitary
confinement, where he has spent the last twenty‐two years.
Proctor spent his first nine years in the SHU under Disciplinary
Segregation and the last thirteen years and counting under
Administrative Segregation. Defendants‐Appellees are current
and former DOCCS administrators: Lucien J. LeClaire, Jr., a
former Deputy Commissioner of DOCCS; Brian Fischer, a former
Commissioner of DOCCS; Anthony J. Annucci, the current
Acting Commissioner of DOCCS; and Joseph Bellnier, the
current Deputy Commissioner of DOCCS (collectively,
Proctor brings this action under 42 U.S.C. § 1983, alleging
that his continuous confinement in the SHU under
Administrative Segregation violates his Fourteenth Amendment
rights to procedural and substantive due process of law. The
District Court (Sharpe, J.) granted Defendants’ motion for
summary judgment on Proctor’s procedural due process claim,
holding that no reasonable juror could conclude that Proctor was
denied meaningful periodic reviews of his Administrative
Segregation commitment. The District Court also awarded
summary judgment to Defendants sua sponte on Proctor’s
substantive due process claim.
We conclude that the record presents triable issues of fact
regarding Proctor’s procedural due process claim and that the
District Court violated Federal Rule of Civil Procedure 56(f) in
awarding summary judgment sua sponte on Proctor’s substantive
Case 15-3673, Document 90-1, 01/24/2017, 1953059, Page4 of 31
due process claim. The judgment of the District Court is
VACATED and the case is REMANDED for further proceedings.
In the DOCCS system, there are two relevant reasons for
prison administrators to send an inmate to the SHU—
Disciplinary Segregation and Administrative Segregation (“Ad
Seg”). Disciplinary Segregation, as its name suggests, is designed
to discipline an inmate found guilty of a “Tier III” violation, the
most serious of three infraction levels in the DOCCS system.
N.Y. COMP. CODES R. & REGS. tit. 7, §§ 270.2, 270.3(a)(3), 301.2. A
Disciplinary Segregation term lasts “for a designated period of
time as specified by the hearing officer.” Id. § 301.2(a). Once that
time elapses, the statute does not empower DOCCS to punish
the inmate doubly for the same infraction by imposing further
Disciplinary Segregation. See id.
Ad Seg serves a different purpose. As relevant here, Ad
Seg removes an inmate from the general population when he
“pose[s] a threat to the safety and security of the [prison]
facility.” Id. § 301.4(b). Given the importance of that purpose, Ad
Seg is flexible and accords DOCCS officials substantial discretion
in deciding whether to impose an Ad Seg term. Ad Seg terms are
open‐ended and do not require that DOCCS predetermine when
it will release an inmate—“[a]t any time when deemed
appropriate [by DOCCS], an inmate may be evaluated and
recommended for return to general population.” Id. § 301.4(e)
There is, however, a constitutional ceiling on that
flexibility: To ensure that a state prison facility does not use Ad
Seg as a pretext to commit an inmate to the SHU indefinitely, the
Case 15-3673, Document 90-1, 01/24/2017, 1953059, Page5 of 31
Due Process Clause of the Fourteenth Amendment mandates
that prison officials periodically review whether an inmate
continues to pose a threat to the facility. Hewitt v. Helms, 459 U.S.
460, 477 n.9 (1983), abrogated in part on other grounds by Sandin v.
Conner, 515 U.S. 472 (1995). New York effectuates that mandate
by providing an inmate with an initial hearing within fourteen
days of his confinement in Ad Seg, see N.Y. COMP. CODES R. &
REGS. tit. 7, §§ 254.6, 301.4(a), and with reviews conducted
pursuant to section 301.4(d) of the DOCCS regulatory code
(“section 301.4(d) reviews”) every sixty days until he is returned
to the general population, see id. § 301.4(d).
Section 301.4(d) review, as it manifests itself in this case, is
a three‐step process.1 First, a committee commonly referred to as
the “Facility Committee,” consisting of “a representative of the
facility executive staff, a security supervisor, and a member of
the guidance and counseling staff,” convenes to review the
inmate’s institutional record. Id. § 301.4(d)(1). The Facility
Committee prepares and submits to the superintendent of the
prison a report outlining “(i) reasons why the inmate was
initially determined to be appropriate for [Ad Seg]; (ii)
information on the inmate’s subsequent behavior and attitude;
and (iii) any other factors that [the committee] believe[s] may
favor retaining the inmate in or releasing the inmate from [Ad
Seg]” and recommending whether to continue the inmate’s SHU
Second, the superintendent forwards the Facility
Committee’s report and any written response that the inmate
In other cases, section 301.4(d) review is streamlined into a process
where officials from the prison facility, including the superintendent,
review an inmate’s case and render a final decision without the input
of the DOCCS headquarters. Id. § 301.4(d)(2).
Case 15-3673, Document 90-1, 01/24/2017, 1953059, Page6 of 31
submits to a “Central Office Committee” located at DOCCS
headquarters in Albany, New York, for “Central Office Review.”
The Central Office Committee, “consisting of a representative
from the office of facility operations, a member of [the DOCCS]
inspector general’s staff, and an attorney from the office of
counsel,” reviews the Facility Committee’s report, develops its
own recommendation whether the inmate continues to pose a
safety threat to the facility, and forwards the paperwork to the
deputy commissioner of DOCCS. Id. § 301.4(d)(3).
Third, the deputy commissioner reviews the two
committees’ recommendations, as well as the inmate’s written
statement when applicable, and decides whether to continue the
inmate in Ad Seg. Id. Once the deputy commissioner makes a
final decision, he or she notifies the superintendent of the
inmate’s prison facility, who provides written notice to the
inmate of the decision and its “reason(s),” and a statement
notifying the inmate of his right to submit a written statement in
the next section 301.4(d) review. Id. § 301.4(d)(4).
Proctor is currently held under Ad Seg in the SHU at the
Upstate Correctional Facility. He is serving a state prison term of
thirty‐two‐and‐one‐half years to life for second‐degree murder
and attempted escape and is first eligible for parole in 2024.
Proctor previously served two other terms in state prison for
convictions of, inter alia, burglary, robbery, and assault.
Proctor’s early years in prison (in the 1980s and early
1990s) were marked by violence and dangerous defiance of the
law. Proctor stabbed an inmate. He “absconded from a job
search from the Edgecombe Correctional Facility.” Proctor v.
Kelly, No. 9:05‐cv‐0692, 2008 WL 5243925, at *14 (N.D.N.Y. Dec.
16, 2008) (“Proctor I”) (Suddaby, J.) (internal quotation marks
Case 15-3673, Document 90-1, 01/24/2017, 1953059, Page7 of 31
omitted). He attempted to escape from a police vehicle by
unlocking his handcuffs and kicking a window. See id at *16. He
professed a desire to be “more famous than Willie Bosket,” a
notorious prisoner in DOCCS. Id. at *14. And he used a prison
telephone to solicit (unsuccessfully) another person to firebomb
a residence. Id. at *16.
Proctor’s defiance reached its apex in November 1994,
when he and three inmate‐accomplices executed an elaborate
escape from Shawangunk Correctional Facility, a maximum
security facility.2 DOCCS officials apprehended Proctor after he
had been at large for about five hours. Disciplinary proceedings
against Proctor for his escape resulted in a sentence of ten years
of Disciplinary Segregation in the SHU.
Proctor’s behavior in the SHU under Disciplinary
Segregation varied. For the first three years of his SHU term, he
continued his defiance. Proctor managed to remove his
handcuffs without permission while in his cell. See Proctor I, 2008
WL 5243925, at *14. He threw feces at DOCCS officials. See id. at
*16. He twice set fire to his cell. Id. at *14, *16. He concealed a
razor in his rectum. Id. He stabbed another inmate. Id. And he
received disciplinary reports for “disorderly conduct, fighting,
harassment, movement violations, refusing direct orders, and
violent conduct.” Id. at *14. Later in his time in Disciplinary
Segregation, however, Proctor’s behavior improved
considerably. Defendants recount in their brief in this Court that
“[b]ecause [Proctor] . . . had periods of good behavior while in
[the] SHU, over time, DOCCS gradually reduced his
One DOCCS official described Shawangunk as “a maxi max” facility
that “shouldn’t be escapable from.” J.A. 929.
Case 15-3673, Document 90-1, 01/24/2017, 1953059, Page8 of 31
[Disciplinary Segregation] penalty to nine years and one
month.” Appellees’ Br. 10.
On the day he was scheduled to be released from
Disciplinary Segregation, DOCCS served Proctor with an “[Ad
Seg] Recommendation” and retained him in the SHU. Proctor I,
2008 WL 5243925, at *10. DOCCS held a hearing shortly
thereafter to determine if Proctor was appropriate for Ad Seg.
See id. at *15. The hearing officer found that Proctor posed a
threat to the prison facility based on Proctor’s criminal history
and misbehavior, including his 1994 escape and his early
behavior in Disciplinary Segregation. See id. at *10. As a result, as
soon as Proctor’s Disciplinary Segregation ended, DOCCS
retained him in the SHU under Ad Seg, where he has spent the
last thirteen years and remains today.3
Proctor’s behavioral record in Ad Seg has not been
spotless. In the first few years, Proctor received “minimal”
disciplinary reports for possession of contraband, lewd
exposure, and “unhygienic acts, littering and harassment.” J.A.
334, 348. In the last decade, he has committed two unhygienic
acts and possessed one unidentified weapon. At times, he can be
argumentative with his fellow Ad Seg inmates.
But in the main, Proctor’s behavior has remained positive.
He has gone long stretches—including one period of almost four
years—without any disciplinary reports. See J.A. 320–34
Although SHU conditions under Ad Seg and under Disciplinary
Segregation are similar, DOCCS’s affords Ad Seg inmates a few
additional privileges, such as access to playing cards, headphones, up
to ten pieces of reading material, ten additional personal photos,
stamps, and a small bottle of skin cream. See N.Y. COMP. CODES R. &
REGS. tit. 7, § 303.2.
Case 15-3673, Document 90-1, 01/24/2017, 1953059, Page9 of 31
(fourteen months without a disciplinary report), 342–91 (almost
four years without a disciplinary report), 395–424 (twenty
months without a disciplinary report), 429–55 (twenty months
without a disciplinary report). Particularly in the last eight years,
DOCCS has observed that Proctor has made “an extensive effort
to minimize his disciplinary violations.” J.A. 374. He received
just one disciplinary report between December 2011 and the
close of the record in this case. DOCCS considered Proctor’s
attitude “positive,” “co[‐]operat[ive],” and “much improved.”
J.A. 419, 506.
Defendants have without fail conducted a section 301.4(d)
review for Proctor every sixty days he has been in Ad Seg. Each
time, the Upstate Corrections Facility Committee (made up of a
rotating panel of Upstate Corrections officials) convenes to
review Proctor’s institutional record and make a
recommendation. That committee forwards Proctor’s paperwork
to the Central Office Committee (comprising a rotating panel of
officials from DOCCS headquarters), which in turn reviews
Proctor’s case and any written statement Proctor submits. The
Central Office Committee then issues a recommendation, which
to this point invariably has been that Proctor should remain
confined in Ad Seg, and forwards the paperwork to the deputy
commissioner of DOCCS. The deputy commissioner reviews the
Facility and Central Office Committees’ reports and adopts their
recommendations. Finally, the Upstate Corrections Facility
superintendent notifies Proctor of the deputy commissioner’s
decision in a summary report.
Case 15-3673, Document 90-1, 01/24/2017, 1953059, Page10 of 31
The procedural history in this case involves multiple
lawsuits and a prior appeal, mostly addressing procedural issues
unrelated to our decision today. Much of that history is
described in detail in Proctor v. LeClaire, 715 F.3d 402, 406–11 (2d
Cir. 2013) (“Proctor III”). Here, we briefly summarize the prior
history and lay out the present dispute.
Proctor brought his first pro se challenge to his Ad Seg
commitment in 2005. Proctor I, 2008 WL 5243925. He brought a
§ 1983 claim alleging, inter alia, that various DOCCS officials,
including then‐Deputy Commissioner LeClaire, deprived him of
procedural and substantive due process by confining him in Ad
Seg as soon as his Disciplinary Segregation ended, and violated
the Eighth Amendment by forcing him to live in inhumane
conditions in the SHU. Id. at *1. In a brief at the summary‐
judgment stage, Proctor also claimed for the first time that
defendants denied him due process by failing to conduct a single
meaningful section 301.4(d) review to date. Id. at *1 & n.1.The
district court granted summary judgment for the defendants. Id.
at *1. Proctor’s appeal in this Court was dismissed as frivolous.
In 2009, Proctor instituted his second pro se challenge to
his Ad Seg commitment, the action which is ultimate source of
this appeal. Proctor v. LeClaire, No. 9:09‐cv‐1114, 2011 WL
2976911 (N.D.N.Y. July 21, 2011) (“Proctor II”) (Sharpe, J.). Again,
Proctor brought a § 1983 claim against LeClaire asserting, inter
alia, that his section 301.4(d) reviews since his initial commitment
to Ad Seg were “sham[s], perfunctory[,] and meaningless” and
performed as a pretext to confine Proctor in Ad Seg indefinitely.
Id. at *1. The court understood Proctor to assert that LeClaire had
deprived him of due process. See id. at *3–4; Willey v. Kirkpatrick,
801 F.3d 51, 62 (2d Cir. 2015) (requiring that courts interpret pro
se litigants’ papers “liberally ‘to raise the strongest arguments
Case 15-3673, Document 90-1, 01/24/2017, 1953059, Page11 of 31
they suggest’ ” (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d
Cir. 1994)). On LeClaire’s motion, the District Court dismissed
Proctor’s action on res judicata and collateral estoppel grounds.
Proctor II, 2011 WL 2976911, at *3–4. This time, Proctor timely
appealed and was appointed counsel. Proctor III, 715 F.3d at 411.
We reversed without expressing a view on the merits of
Proctor’s claim, vacated the dismissal, and remanded for further
proceedings. Id. at 411–17.
On remand, Proctor, still aided by counsel, filed an
amended complaint, the pleading in play in this appeal. That
complaint added former Commissioner Fischer in his personal
capacity and Acting Commissioner Annucci and Deputy
Commissioner Bellnier in their personal and official capacities as
defendants to this action. Proctor alleges that Defendants denied
him procedural due process because none of the section 301.4(d)
reviews while he was confined in Ad Seg has been
“meaningful.” J.A. 67. Proctor supports his claim by arguing
that, inter alia, Defendants “justified [his] continued confinement
in Ad Seg by citing decades‐old incidents, such as the 1994
escape, for which [he] already served his disciplinary sentence,”
J.A. 68; that Defendants “used [his] consistent good behavior
over the past several years against [him] as further justification
to continue his confinement in Ad Seg,” J.A. 69 (emphasis
omitted); and that many of Proctor’s reviews have consisted of
“mere copying and pasting of language from one review to the
next,” J.A. 71. Proctor concludes that “Defendants have used . . .
sham reviews of [his] [Ad Seg] as a pretext to indefinitely
confine [him] in the SHU.” J.A. 76.
Proctor also alleges that his confinement in the SHU for
twenty‐two uninterrupted years amounts to a deprivation of
substantive due process. In light of physical and psychological
injuries he claims to suffer, Proctor alleges that Defendants’
Case 15-3673, Document 90-1, 01/24/2017, 1953059, Page12 of 31
failure to undertake meaningful section 301.4(d) reviews
“render[s] [his] indefinite confinement arbitrary and oppressive
in a constitutional sense.” J.A. 77.
Defendants moved for summary judgment on Proctor’s
procedural due process claim, arguing primarily that Proctor’s
section 301.4(d) reviews comport with procedural due process.
To defend against Defendants’ motion, Proctor deposed
witnesses from all three levels of his section 301.4(d) reviews. He
began with Christopher DeLutis and Joseph Porcelli, members of
Facility Committee panels that reviewed Proctor’s Ad Seg
commitment. Both witnesses espoused the belief that, by and
large, inmates who once posed an escape risk would never be
appropriate candidates for release from Ad Seg. DeLutis testified
that there is nothing any of the SHU inmates he has reviewed
“could do for [him] to . . . believe that they were no longer an
escape risk,” J.A. 567, and that there is no “behavior that those
specific inmates could exhibit that would make [him] change
[his] mind about whether or not they were an escape risk,” J.A.
568. When asked if there was anything an inmate can ever do to
overcome an escape history, DeLutis said, “All I know is . . . in
my experience, I never recommended anybody for release.” J.A.
572. Porcelli’s testimony was similar: He affirmed that he has
“never dealt with a prisoner released from [Ad Seg] who has a
history of escape.” J.A. 780–81. And when asked, “In your
experience, once an inmate is placed in [Ad Seg], they’re never
released to general population?” Porcelli responded, “[Y]es,
that’s correct.” J.A. 770.
The general view expressed by DeLutis and Porcelli did
not change in Proctor’s case—both indicated that, given his
escape attempts, they believed Proctor would never be released
from Ad Seg. When asked, “Is there anything that Proctor could
ever do to change your opinion about whether or not he should
Case 15-3673, Document 90-1, 01/24/2017, 1953059, Page13 of 31
be released [from Ad Seg]?” DeLutis answered, “No. I believe
[Proctor] is right where he belongs.” J.A. 585. DeLutis ultimately
admitted that Proctor’s behavior “plays no role in the decision
whether or not to maintain him in [A]d [S]eg” because Proctor
“is an escape risk.” Id. Porcelli again struck a similar tone, stating
that “the only thing that Mr. Proctor could do for [Porcelli] to
believe he’s not an escape risk” is “[g]et old” or “reach the end of
his sentence.” J.A. 795. Even as Proctor’s counsel walked Porcelli
through section 301.4(d) review reports demonstrating that
Proctor had a positive disciplinary record for over five years,
Porcelli stood by his decision to recommend continuation of
Proctor’s Ad Seg term. He testified that Proctor “[s]till posed an
escape risk” given “the amount of time he ha[s] to do” and that
he had “[j]ust an inner feeling that . . . given the opportunity,
[Proctor] would try to [escape] again.” J.A. 800.
Porcelli raised one more issue of note: As a general
matter, Porcelli confirmed that “[Ad Seg] is used for disciplinary
reasons.” J.A. 797. He identified at least one instance in which
Ad Seg “was used in place of discipline” because prison officials
did not have enough evidence to “pin [a disciplinary infraction]
on an individual that they suspected.” J.A. 771. He then
admitted that “[Ad Seg] is being used for disciplinary reasons
for Mr. Proctor.” J.A. 797. But see J.A. 931 (Miller: “Ad [S]eg is
not to punish [Proctor].”).
Proctor next deposed Scott Kelly and Mark Miller,
members of Central Office Committee panels that conducted
some of Proctor’s section 301.4(d) reviews. Both recounted
methodical Central Office Review procedures, marked by strong
reliance on Facility Committee reports. Kelly stated that he
places great weight on the Facility Committee because they are
“boots on the ground with the inmate.” J.A. 635. Miller similarly
stated that the Central Office Committee relies “very heavily” on
Case 15-3673, Document 90-1, 01/24/2017, 1953059, Page14 of 31
the Facility Committee. J.A. 908. Miller testified that he does no
preparation for meetings of the Central Office Committee and
instead “rel[ies] on what is presented” by the Facility
Committee. J.A. 904. Miller testified that he has never disagreed
with a recommendation by the Facility Committee.
Proctor’s counsel also asked both Kelly and Miller
whether, in their experiences, Ad Seg inmates who once posed
an escape risk have any hope of being returned to the general
population. Kelly identified one instance in which an inmate
who had been committed to Ad Seg after escaping from a
juvenile facility outside the DOCCS system was later released
from the SHU. See J.A. 635 (“[That] [t]he initial incident . . .
occurred outside the [DOCCS system] was . . . taken into account
[when deciding whether to release the inmate from Ad Seg].”).
Miller was unable, however, to identify any inmate placed in Ad
Seg after escaping a DOCCS facility who had been returned to
the general population. See J.A. 929.
Lastly, Proctor deposed Bellnier and LeClaire, the two
deputy commissioners who conducted the final level of Proctor’s
section 301.4(d) reviews. Bellnier’s recollection of his
participation in the section 301.4(d) review process
demonstrated significant reliance on both the Facility and
Central Office Committees. Bellnier testified that in each section
301.4(d) review form he receives, the portion indicating his final
decision has already been completed for him by an unknown
member of the Central Office Committee. That is, someone
completes the deputy commissioner’s portion of the section
301.4(d) review form before Bellnier reviews the Committees’
work, and Bellnier merely signs the bottom of the form to
indicate his approval. Just as Miller has never disagreed with a
recommendation by the Facility Committee, Bellnier testified
Case 15-3673, Document 90-1, 01/24/2017, 1953059, Page15 of 31
that he has never disagreed with a recommendation by the
Central Office Committee.
When asked about Proctor in particular, both Bellnier and
LeClaire focused on Proctor’s decades‐old escape history as
stand‐alone justification for continuing his Ad Seg. LeClaire
stated, “I’m not sure any action that [Proctor] could do would
counteract his criminal history” because “Proctor’s criminal
history alone justif[ies] his retention in [Ad Seg].” J.A. 714. That
Proctor’s escapes and other serious misbehavior occurred in the
distant past was not “relevant” to LeClaire’s section 301.4(d)
reviews. Id. Bellnier concurred, testifying that he has “formed”
the opinion that Proctor “would be a threat to any facility that he
was in in general population.” J.A. 488. Bellnier stated that he
“ha[s] not been presented with” any type of behavior Proctor
could exhibit to get out of Ad Seg and suggested that he would
continue to keep Proctor in Ad Seg even if Proctor’s behavior
remained positive for decades so long as Proctor did not accept
responsibility for past actions. J.A. 501; see J.A. 503.
Proctor also sought production of the paperwork for each
of his section 301.4(d) reviews since his initial Ad Seg
commitment in 2003. Many of the section 301.4(d) reports reflect
detailed evaluations of the appropriateness of Proctor’s
continued Ad Seg term; occasionally, the reports contain specific
objection‐by‐objection responses to Proctor’s written complaints.
The reports also reveal, however, three issues of note: First, six of
Proctor’s section 301.4(d) reviews, from December 2007 through
October 2008, note that Proctor’s “[Ad Seg] status has a
disciplinary aspect to it.” J.A. 368–74; see J.A. 364–66. Second,
many of the reports are virtually identical to each other, with the
exception of a few stray notations. See, e.g., J.A. 318–32 (over one
year of virtually identical reports), 342–57 (over one year of
virtually identical reports), 360–74 (over one year of virtually
Case 15-3673, Document 90-1, 01/24/2017, 1953059, Page16 of 31
identical reports). And third, the Facility Committee’s reasoning
in some of the reports is hard to understand: The committee
wrote that “[Proctor’s] positive behavior and attitude with staff
make him a high profile security concern,” that Proctor’s
“superficial cooperat[ion] on a day to day basis . . . can not [sic]
mask his resistance to authority,” and that Proctor’s good
behavior was irrelevant because the SHU “provides little
opportunity for infractions.” J.A. 360–66, 373, 419. When asked at
his deposition to explain what the Facility Committee meant by
these notations, Porcelli responded, “That’s a little weird, isn’t it.
. . . I can’t explain that.” J.A. 810.
In October 2015, the District Court granted Defendants’
motion for summary judgment. Proctor v. LeClaire, No. 9:09‐cv‐
1114, 2015 WL 5971043 (N.D.N.Y. Oct. 14, 2015) (Sharpe, J.)
(“Proctor IV”). The court held that although Defendants had
deprived Proctor of a liberty interest by confining him in Ad Seg
for more than 4,000 days, Proctor had received all the process
due for that deprivation because Defendants provided Proctor
with section 301.4(d) reviews that were, as a matter of law,
meaningful. Id. at *3–5. The District Court then addressed
Proctor’s substantive due process challenge, even though
Defendants had not moved for summary judgment on that
claim. Id. at *6. Without acknowledging it was raising summary
judgment sua sponte and providing the parties with notice, the
District Court concluded on its own that “[D]efendants did not
exhibit conscious‐shocking [sic] behavior because they were
never made aware of the alleged devastating effects of Proctor’s
continued placement in Ad Seg.” Id. As a result, the court held
Defendants were entitled to summary judgment on Proctor’s
substantive due process claim as well. Id.
This appeal followed.
Case 15-3673, Document 90-1, 01/24/2017, 1953059, Page17 of 31
“[W]e review de novo a grant of summary judgment,”
affirming “only where ‘there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter
of law.’ ” Willey, 801 F.3d at 62 (quoting FED. R. CIV. P. 56(a)).
“Summary judgment is inappropriate when the admissible
materials in the record ‘ “make it arguable” ’ that the claim has
merit.” Kaytor v. Elec. Boat Corp., 609 F.3d 537, 545 (2d Cir. 2010)
(quoting Jasco Tools, Inc. v. Dana Corp. (In re Dana Corp.), 574 F.3d
129, 151 (2d Cir. 2009)). We construe the evidence and draw all
reasonable inferences in the light most favorable to the non‐
moving party. Willey, 801 F.3d at 62. “In reviewing the evidence
and the inferences that may reasonably be drawn, [we] ‘may not
make credibility determinations or weigh the evidence . . . .
“Credibility determinations, the weighing of the evidence, and
the drawing of legitimate inferences from the facts are jury
functions, not those of a judge.” ’ ” Kaytor, 609 F.3d at 545
(omission in original) (emphases omitted) (quoting Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)).4
Defendants ask us to apply “a presumption of regularity” that they
claim “attaches to the actions of government agencies[,] such as
DOCCS,” and “public officers,” such as Defendants. Appellees’ Br. 22–
23 (internal quotation marks omitted) (quoting U.S. Postal Serv. v.
Gregory, 534 U.S. 1, 10 (2001); United States v. Chemical Found., 272 U.S.
1, 14 (1926)). While we afford prison officials “wide‐ranging deference
in the adoption and execution of policies” designed to promote
institutional safety, Bell v. Wolfish, 441 U.S. 520, 547 (1979), Defendants
cite no case, and we cannot find one, that applies such a presumption
in a constitutional challenge to state prison officials’ periodic review of
Ad Seg. We decline to do so today.
Case 15-3673, Document 90-1, 01/24/2017, 1953059, Page18 of 31
Proctor claims that he was denied procedural due
process. To prevail, he must be able to demonstrate (1) that
Defendants deprived him of a cognizable interest in “life, liberty,
or property,” (2) without affording him constitutionally
sufficient process. U.S. CONST. amend. XIV, § 1; Wolff v.
McDonnell, 418 U.S. 539, 556 (1974). The District Court held that
Proctor’s SHU term in excess of 4,000 days gives rise to a
cognizable liberty interest. See Sandin, 515 U.S. at 484 (holding
that an inmate has a cognizable liberty interest in freedom from
“restraint which . . . imposes atypical and significant hardship on
the inmate in relation to the ordinary incidents of prison life”).
Because Defendants take no issue with that decision, the sole
issue before us on this claim is whether Defendants afforded
Proctor sufficient process.
Proctor raises a view of inmate procedural due process
this Court has yet to address. While he acknowledges that
Defendants have nominally afforded him sufficient process by
conducting regular section 301.4(d) reviews, Proctor argues that
those reviews have been in substance “hollow,” “perfunctory,”
and meaningless. Appellant’s Br. 24. A meaningless section
301.4(d) review, Proctor asserts, is the functional equivalent of
no review at all and therefore constitutionally insufficient.
Proctor also argues that Defendants have violated the Due
Process Clause by using Ad Seg as a means to punish him
improperly and as a pretext to confine him in the SHU
Proctor’s argument raises two preliminary concerns: First,
Proctor’s claim cannot serve as an appeal from his section
301.4(d) reviews. Procedural due process does not permit a court
to review the substance of Defendants’ decision to confine
Proctor in Ad Seg. See Graziano v. Pataki, 689 F.3d 110, 116 (2d
Case 15-3673, Document 90-1, 01/24/2017, 1953059, Page19 of 31
Cir. 2012) (per curiam). We may not substitute our judgment for
Defendants’, nor may we rebalance the section 301.4(d) criteria.
See id. The Due Process Clause permits only an evaluation of
whether Defendants’ method for coming to their Ad Seg
determinations is sufficient. Second, we are mindful of the
context in which this case arises and the deference we owe
prison officials in carrying out their daily tasks. See Bell, 441 U.S.
at 547–48. “[O]ne cannot automatically apply procedural rules
designed for free citizens in an open society . . . to the very
different situation . . . in a state prison.” Wolff, 418 U.S. at 560.
With those observations in mind, we proceed to the merits of
In Hewitt v. Helms, the Supreme Court described what
process is due from prison officials making Ad Seg
determinations. 459 U.S. at 474. The Court made clear that Ad
Seg is appropriate when necessary to incapacitate an inmate who
“represents a security threat” or to “complet[e] . . . an
investigation into misconduct charges.” Id. at 476. So long as
prison officials seek to achieve one or both of those goals, they
have wide latitude in the procedures they deploy. Before
confining an inmate in Ad Seg, prison officials must provide
“some notice of the charges against him and an opportunity to
present his views to the prison official charged with deciding
whether to transfer him to [Ad Seg],” although not necessarily a
full hearing. Id.; accord Taylor v. Rodriguez, 238 F.3d 188, 192 (2d
Cir. 2001). Once that has occurred, prison officials need only
conduct “an informal, nonadversary evidentiary review” of
whether the confinement is justified. Hewitt, 459 U.S. at 476.
Their final Ad Seg decision may “turn largely on purely
Case 15-3673, Document 90-1, 01/24/2017, 1953059, Page20 of 31
subjective evaluations and on predictions of future behavior.” Id.
at 474 (internal quotation marks omitted).5
Once an inmate has been confined in Ad Seg, Hewitt
mandates that prison officials “engage in some sort of periodic
review of the confinement” to verify that the inmate “remains a
security risk” throughout his term. Hewitt, 459 U.S. at 477 n.9.
Periodic Ad Seg reviews are also flexible and may be based on
“a wide range of administrative considerations,” including but
not limited to observations of the inmate in Ad Seg, “general
knowledge of prison conditions,” misconduct charges, ongoing
tensions in the prison, and any ongoing investigations. Id. The
purpose of these periodic reviews is to ensure that the state’s
institutional interest justifying the deprivation of the confined
inmate’s liberty has not grown stale and that prison officials are
not using Ad Seg as “a pretext for indefinite confinement of an
inmate.” See id.
It is well established that whenever process is
constitutionally due, no matter the context, “[i]t . . . must be
granted at a meaningful time and in a meaningful manner.”
Armstrong v. Manzo, 380 U.S. 545, 552 (1965); accord Parratt v.
Taylor, 451 U.S. 527, 540 (1981); Mathews v. Eldridge, 424 U.S. 319,
333 (1976); Goldberg v. Kelly, 397 U.S. 254, 267 (1970); Taylor, 238
F.3d at 193. Proctor’s claim seeks to measure what Hewitt
requires for meaningful periodic review of Ad Seg. Guiding that
analysis are the three Mathews factors—the government’s
When the “sole purpose of confinement is punishment,” prison
officials must provide more robust procedural protections. Patterson v.
Coughlin, 761 F.2d 886, 890–91 (2d Cir. 1985) (citing Wolff, 418 U.S. at
558); see also Bolden v. Alston, 810 F.2d 353, 357 (2d Cir. 1987) (“[T]he
level of procedural protection differs according to the purpose of the
Case 15-3673, Document 90-1, 01/24/2017, 1953059, Page21 of 31
interest in limited fiscal and administrative burdens, the private
interest in freedom from restraint, and “the risk of an erroneous
deprivation of [the private] interest through the procedures
used, and the probable value, if any, of additional or substitute
procedural safeguards.” 424 U.S. at 335.
The state’s interest in flexible Ad Seg review
procedures—maintaining institutional security—is substantial.
Institutional safety and security are perhaps a prison facility’s
most important considerations. Bell, 441 U.S. at 546–47 (quoting
Pell v. Procunier, 417 U.S. 817, 823 (1974)) (citing Jones v. N.C.
Prisoners’ Labor Union, 433 U.S. 119, 129 (1977); Procunier v.
Martinez, 416 U.S. 396, 412 (1974)). Courts must preserve prison
officials’ “free[dom] to take appropriate action to ensure the
safety of inmates and corrections personnel and to prevent
escape.” Bell, 441 U.S. at 547. “Prison administrators therefore
should be accorded wide‐ranging deference in the adoption and
execution of policies and practices that in their judgment are
needed to preserve internal order and discipline and to maintain
institutional security.” Id. But see Covino v. Vt. Dep’t of Corr., 933
F.2d 128, 130 (2d Cir. 1991) (per curiam) (“At some point . . . the
administrative necessity for involuntary lock‐up begins to
However, the private interest implicated by an extended
and indefinite stay in Ad Seg is also weighty. Hewitt instructs
that an inmate in Ad Seg who “was merely transferred from one
extremely restricted environment to an even more confined
situation” generally does not have a private interest “of great
consequence.” See 459 U.S. at 473. But Helms, the inmate in
Hewitt, spent less than two months in Ad Seg awaiting his
disciplinary hearing. Id. at 464–65. Proctor, by contrast, has spent
thirteen years in Ad Seg with no release date in sight. Proctor’s
interest in avoiding an indefinite Ad Seg term is surely
Case 15-3673, Document 90-1, 01/24/2017, 1953059, Page22 of 31
substantial, more so than Helms’s interest in avoiding a
temporary Ad Seg term awaiting a hearing. Compare N.Y. COMP.
CODES R. & REGS. tit. 7, § 301.3(a)(1) (providing for limited
admission to the SHU “in the case of an inmate who is awaiting
initial appearance before or determination of a disciplinary
hearing” as in the case of Helms), with id. § 301.4 (providing for
admission to the SHU under Ad Seg as in this case). We are not
alone in this view. The Third Circuit has similarly concluded
that an inmate who has spent an extended period of time in Ad
Seg and whose term is “potentially limitless” has “a more
significant liberty interest for due process analysis than that
attributed to [Helms].” Mims v. Shapp, 744 F.2d 946, 951–52 (3d
In light of those counterbalancing interests, we believe
that meaningful periodic reviews of Ad Seg must at least satisfy
the following criteria:
First, the reviewing prison officials must actually evaluate
whether the inmate’s continued Ad Seg confinement is justified.
See Hewitt, 459 U.S. at 477 n.9. It is not sufficient for officials to go
through the motions of nominally conducting a review meeting
when they have developed a pre‐review conclusion that the
inmate will be confined in Ad Seg no matter what the evidence
shows. Review with a pre‐ordained outcome is tantamount to no
review at all.
Tellingly, Helms’s fifty‐one‐day Ad Seg term likely would not
require any constitutional process today. See Wilkinson v. Austin, 545
U.S. 209, 229 (2005) (“Sandin abrogated . . . Hewitt’s methodology for
establishing [a] liberty interest . . . .”); Sealey v. Giltner, 197 F.3d 578, 589
(2d Cir. 1999) (holding 101‐day SHU term ordinarily does not give rise
to a liberty interest after Sandin).
Case 15-3673, Document 90-1, 01/24/2017, 1953059, Page23 of 31
Second, the reviewing officials must evaluate whether the
justification for Ad Seg exists at the time of the review or will
exist in the future, and consider new relevant evidence as it
becomes available. It is inherent in Hewitt’s use of the term
“periodic” that ongoing Ad Seg reviews may not be frozen in
time, forever rehashing information addressed at the inmate’s
initial Ad Seg determination. Cf. Proctor III, 715 F.3d at 413
(“[T]he initial authorization for confinement and the subsequent
decisions to continue confinement—although plainly involving
considerations that overlap—are not . . . the same transaction.”
(internal quotation marks omitted)). Rather, reviews must take
into account prison conditions and inmate behavior as they
change over time; those changes may modify the calculus of
whether the inmate presents a current threat to the safety of the
facility. The periodic Ad Seg review test announced by the
Hewitt Court is not whether the confined inmate was a threat to
the facility when he was confined initially; it is whether the
inmate “remains a security risk” on the date of the periodic
review. See 459 U.S. at 477 n.9 (emphasis added). This is not to
say that prison officials are barred from according significant
weight to events that occurred in the past. Neither do we suggest
that recent events categorically ought to be more salient in
periodic reviews than those that occurred long ago. We conclude
merely that prison officials must look to the inmate’s present and
future behavior and consider new events to some degree to
ensure that prison officials do not use past events alone to justify
indefinite confinement. See id.
Third and finally, the reviewing officials must maintain
institutional safety and security (or another valid administrative
justification) as their guiding principles throughout an inmate’s
Ad Seg term. SHU confinement that began for proper Ad Seg
purposes may not morph into confinement that persists for
Case 15-3673, Document 90-1, 01/24/2017, 1953059, Page24 of 31
improper purposes. The state is entitled to the procedural
flexibility that Hewitt allows because of its manifest interest in
maintaining safe detention facilities and other similar
administrative concerns; “the Mathews balancing test tips in
favor of the inmate’s liberty interest” when a state seeks to
impose discipline. Patterson, 761 F.2d at 891. The state may not
use Ad Seg as a charade in the name of prison security to mask
indefinite punishment for past transgressions.
Our resolution of this matter is in accord with the efforts
of four of our sister circuits. In Kelly v. Brewer, 525 F.2d 394 (8th
Cir. 1975), the Eighth Circuit observed that the essential
characteristic that distinguishes Ad Seg from Disciplinary
Segregation is that Ad Seg “looks to the present and the future”
rather than punishing an inmate for the past. Id. at 399–400. The
court reasoned that periodic Ad Seg decisions therefore must be
based on “valid” justifications (such as institutional safety and
escape prevention) that are “not only . . . valid at the outset but
. . . continue to subsist during the period of the segregation.” Id.
at 400. And to ensure that this mandate is followed, the court
held that “where an inmate is held in segregation for a
prolonged or indefinite period of time due process requires that
his situation be reviewed periodically in a meaningful way and
by relevant standards to determine whether he should be
retained in segregation or returned to [general] population.” Id.
The Third Circuit followed suit in Mims v. Shapp. Recognizing
that “[t]he validity of the government’s interest in prison safety
and security as a basis for restricting the liberty rights of an
inmate subsists only as long as the inmate continues to pose a
safety or security risk,” the court understood the Fourteenth
Amendment to require the court to ensure that “periodic review
does not become simply a sham.” 744 F.2d at 953–54. In Toevs v.
Reid, 685 F.3d 903 (10th Cir. 2012), the Tenth Circuit agreed,
Case 15-3673, Document 90-1, 01/24/2017, 1953059, Page25 of 31
holding that periodic Ad Seg reviews “must be meaningful” and
“cannot be a sham or pretext.” Id. at 912. And in Selby v. Caruso,
734 F.3d 554 (6th Cir. 2013), the Sixth Circuit held that due
process requires periodic Ad Seg decisions to be supported by
“some evidence.” Id. at 559 (quoting Superintendent v. Hill, 472
U.S. 445, 454 (1985)).7
Proctor has raised triable factual questions as to whether
his section 301.4(d) reviews have been constitutionally
DOCCS officials’ own statements raise serious doubts
about whether they have conducted Proctor’s periodic reviews
with the outcomes pre‐ordained. We know from DeLutis and
Porcelli, the “boots on the ground” whose opinions DOCCS
officials accord significant weight, see J.A. 635,8 that Ad Seg may
function as the equivalent of indefinite SHU confinement, even
Accord Tavares v. Amato, 954 F. Supp. 2d 79, 95 (N.D.N.Y. 2013); Smart
v. Goord, 441 F. Supp. 2d 631, 641–42 (S.D.N.Y. 2006); Edmonson v.
Coughlin, 21 F. Supp. 2d 242, 252–54 (W.D.N.Y. 1998); McClary v. Kelly,
4 F. Supp. 2d 195, 213 (W.D.N.Y. 1998); Giano v. Kelly, 869 F. Supp. 143,
149–51 (W.D.N.Y. 1994).
Although the Facility Committee is empowered by statute to issue
only a recommendation, not a final decision, on whether to continue
an inmate’s Ad Seg term, the testimony of Facility Committee
members DeLutis and Porcelli may carry significant weight at trial.
The Facility Committee is more powerful in practice than it appears on
paper. Central Office Committee members Kelly and Miller, as well as
Deputy Commissioner Bellnier, all testified that they accord Facility
Committee recommendations substantial weight. In fact, Kelly, Miller,
and Bellnier all affirmed that they have never disagreed with the
recommendation of the Facility Committee.
Case 15-3673, Document 90-1, 01/24/2017, 1953059, Page26 of 31
though section 301.4(d) reviews are nominally being conducted
on a regular basis. According to the deponents, the standard
DOCCS practice is that an inmate “never” gets out once he has
been placed in Ad Seg. See J.A. 572, 770. No witness to date has
been able to identify a single inmate confined in Ad Seg after an
escape from a DOCCS facility who was later returned to the
general population. The Due Process Clause, of course,
commands a process, not a particular result. But, when process is
nominally afforded to inmates over a significant period of time
without any hint of success it may raise questions in a reasonable
jury’s mind about whether that process has been meaningful as
it relates to Proctor.
Defendants’ statements indicate that Proctor’s section
301.4(d) reviews in particular are no more than hollow
formalities. LeClaire believes that Proctor’s “criminal history
alone” can support continuing his Ad Seg term. J.A. 714. If that
were true, it would obviate the need to conduct periodic reviews
of Ad Seg and make a mockery of Hewitt’s admonition against
indefinite confinement, as it would permit the continuation of
Ad Seg based solely on past events that will never change.
Porcelli’s descriptions of his section 301.4(d) reviews confirmed
that he and LeClaire are of the same mind. Proctor’s counsel
walked Porcelli through five years of reports that indicate
Proctor’s behavior in Ad Seg has been genuinely positive, and
still Porcelli insisted that Proctor should be held in Ad Seg
simply because he escaped in 1994.
As for Bellnier, it is unclear what if any standard he uses
to evaluate Proctor. A reasonable jury could justifiably view
Bellnier’s testimony as the illustration of a rubber stamp. It
appears that the portion of the section 301.4(d) review report
indicating the deputy commissioner’s final decision is filled out
for Bellnier by a Central Office Committee member before
Case 15-3673, Document 90-1, 01/24/2017, 1953059, Page27 of 31
Bellnier conducts any review himself, and that Bellnier merely
signs the bottom of the form. Bellnier admitted that he has never
changed the Central Office Committee member’s decision.
Perhaps that may be why Bellnier failed to respond adequately
when asked by Proctor’s counsel to articulate a reason why
Defendants have continued to hold Proctor in Ad Seg. Bellnier
suggested that Proctor might not be released from Ad Seg even
if he did everything asked of him; that is, even if Proctor’s
“attitude with staff and inmates improved considerably and he
exhibited no negative behavior over a considerable period of
time and he accepted responsibility for past crimes and
misconduct,” Bellnier still might not view him as appropriate for
release to the general population. J.A. 505.
One comes away from these depositions with nagging
skepticism about whether there is anything Proctor could ever
do to be released from Ad Seg. And indeed when Proctor’s
counsel asked DeLutis that very question, DeLutis made clear
that the answer is no, stating that there is nothing that Proctor
can do that would convince DOCCS officials to release him. See
J.A. 585. DeLutis affirmed that he disregards evidence of
Proctor’s recent behavior when conducting section 301.4(d)
reviews because that information has no effect given Proctor’s
two‐decade‐old escape. See J.A. 585–86.9 It is as if DOCCS
It is important to note that Proctor has not just pointed to evidence of
his good behavior. If he had merely done that and Defendants
countered that they had reviewed and either genuinely discredited his
good behavior or found that his poor behavior outweighed it, then
Proctor’s procedural due process claim would amount to an
impermissible substantive appeal of his section 301.4(d) reviews. See
Graziano, 689 F.3d at 116. Here, Proctor has produced evidence of his
good behavior and evidence that DeLutis may have failed to consider
that information. That raises constitutional concerns.
Case 15-3673, Document 90-1, 01/24/2017, 1953059, Page28 of 31
officials are not just moving the goalposts on Ad Seg inmates
like Proctor—there are no goalposts at all. That cannot satisfy
The paper evidence raises additional questions about
whether Proctor’s section 301.4(d) reviews have been designed
to evaluate or to perpetuate his Ad Seg term. Much of the section
301.4(d) review paperwork is repetitive and rote. The years of
virtually identical reports may suggest to a reasonable jury that
Proctor’s reviewers treated the process as satisfied by boilerplate
explanations instead of a forthright review. Cf. Sourbeer v.
Robinson, 791 F.2d 1094, 1101 (3d Cir. 1986) (finding repeated
careless errors in documentation and rote application of Ad
Seg’s “purported justifications” evidence of meaningless
reviews). The review paperwork also contains inexplicable logic
that raises red flags about whether the underlying reviews were
conducted genuinely. It is hard to understand why the Facility
Committee concluded that Proctor’s good behavior, which served
as a legitimate basis to reduce his time in the SHU for
Disciplinary Segregation, somehow morphed in the context of
his Ad Seg determination to indicate that he remained a security
risk. No witness explained how the Facility Committee reached
that conclusion. See J.A. 810 (Porcelli: “I can’t explain that.”).
Defendants’ interpretation of Proctor’s daily cooperation with
prison officials in Ad Seg as “superficial” and an attempt to
“mask his resistance to authority” is bizarre and unsupported.
J.A. 360–66. And Defendants’ dismissal of Proctor’s good
behavior as irrelevant because the SHU is so restricting that it
precludes opportunities for misbehavior is patently circular. Cf.
Williams v. Hobbs, 662 F.3d 994, 1002 (8th Cir. 2011) (relying on
prison warden’s attribution of inmate’s “years of incident‐free
conduct to his isolation from the general population” as
evidence of meaningless reviews). These unusual comments in
Case 15-3673, Document 90-1, 01/24/2017, 1953059, Page29 of 31
the paperwork that continues to justify Proctor’s Ad Seg may
cause a reasonable jury to question the fulsomeness of their
It is important to recognize that not all of the evidence
points in favor of Proctor. Some of the evidence could lead a
reasonable jury to conclude, as Defendants urge, that DOCCS
officials have analyzed Proctor’s good behavior in their section
301.4(d) reviews and “found it to be outweighed by other facts,”
specifically Proctor’s multiple escape attempts and violent acts
towards other prisoners. Appellees’ Br. 30. The deposition
transcripts and section 301.4(d) review reports contain a
Proctor also argues (unsuccessfully) that whether Defendants have
used Ad Seg to impose impermissible punishment is a triable issue. If
Defendants have confined Proctor in Ad Seg solely to discipline him
then section 301.4(d) reviews, which purport to comply with Hewitt
but not with the heightened procedures required to impose
Disciplinary Segregation, are insufficient as a matter of law. See
Patterson, 761 F.2d at 891. We have made clear, however, that
compliance with Hewitt satisfies due process where prison officials
confine an inmate in the SHU for “administrative reasons” that are
sufficient standing alone, even if the officials also intend the
confinement “as a form of punishment.” Sher v. Coughlin, 739 F.2d 77,
83 (2d Cir. 1984); see Deane v. Dunbar, 777 F.2d 871, 877 (2d Cir. 1985).
Proctor’s evidence, even when viewed in a light most favorable to him,
demonstrates such a situation. For example, while Porcelli testified
that “[Ad Seg] is being used for disciplinary reasons for Mr. Proctor,”
J.A. 797, he also stated repeatedly that the “[n]umero uno” justification
for Proctor’s Ad Seg term continues to be that Proctor remains an
escape risk. J.A. 802. Similarly, although some of Proctor’s review
reports state that Proctor’s “[Ad Seg] status has a disciplinary aspect to
it,” they do not prove that discipline is the essential purpose for his
confinement. J.A. 368–74.
Case 15-3673, Document 90-1, 01/24/2017, 1953059, Page30 of 31
substantial amount of evidence that a jury may view as
demonstrating DOCCS officials’ methodical approach to
conducting periodic Ad Seg reviews, including but not limited to
the testimony of Kelly and Miller who recounted measured
review procedures and the reports’ objection‐by‐objection
responses to Proctor’s written statements. It is not our role on
review of a grant of summary judgment, however, to weigh that
evidence against the evidence favorable to Proctor’s claim. See
Kaytor, 609 F.3d at 545. It is no answer to the evidence Proctor
has amassed to point to countervailing evidence. That Proctor
has produced evidence to raise a fair question about the
procedural sufficiency of his reviews is all that is required today.
In sum, periodic reviews of Ad Seg satisfy procedural due
process only when they are meaningful. Reviews are meaningful
only when they involve real evaluations of the administrative
justification for confinement, they consider all of the relevant
evidence that bears on whether that administrative justification
remains valid, and they ensure that Ad Seg is used as neither a
form of punishment nor a pretext for indefinite confinement.
Proctor has produced sufficient evidence to raise factual
questions about whether his section 301.4(d) reviews have met
Proctor also argues that the District Court’s sua sponte
grant of summary judgment for Defendants on his substantive
due process claim violated Federal Rule of Civil Procedure 56(f).
Rule 56(f) permits a court to grant summary judgment sua sponte
only “[a]fter giving notice and a reasonable time to respond.”
FED. R. CIV. P. 56(f); Willey, 801 F.3d at 62. The District Court did
not notify Proctor or Defendants that it intended to consider
substantive due process on its own motion. Without notice of the
Case 15-3673, Document 90-1, 01/24/2017, 1953059, Page31 of 31
District Court’s motion, of course, neither party had a
“reasonable time to respond” to it. See FED. R. CIV. P. 56(f); Willey,
801 F.3d at 62. Indeed, Defendants concede that they failed to
move for summary judgment on substantive due process and
that the District Court violated Rule 56(f) in granting them relief.
Accordingly, we vacate the District Court’s summary judgment
decision with regard to substantive due process. We express no
opinion as to the merits of this claim.
We have considered the parties’ remaining arguments
and find them to be without merit. The judgment of the District
Court dated October 14, 2015, is hereby VACATED in its
entirety and the case is REMANDED to the District Court for
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?