Alston v. Cahill et al
Filing
323
ORDER denying 296 Motion for Judgment as a Matter of Law; denying 298 Motion ; granting 286 Motion for Judgment as a Matter of Law. Signed by Judge Robert N. Chatigny on 8/10/12. (Ratakonda, M)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
IRA ALSTON,
Plaintiff,
V.
JASON CAHILL, ET AL.,
Defendants.
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Case No. 3:07-CV-473 (RNC)
RULING AND ORDER
Plaintiff Ira Alston, an inmate in the custody of the
Connecticut Department of Correction ("DOC") at Northern
Correctional Institution ("Northern"), brings this suit pro se
under 42 U.S.C. §§ 1983 & 1988 alleging violations of his rights
under the United States Constitution and state law.
The case
stems from a physical altercation between the plaintiff and two
correctional officers at Northern.
From February 15 to March 1,
2012, a jury trial was held on the plaintiff's Eighth Amendment
claims, his claim of assault and battery in violation of
Connecticut law, and his claim of retaliation in violation of the
First Amendment.
counts.
The jury found for the defendants on all
Two matters remain pending for decision by the Court.
First, during the trial, I severed the plaintiff's claim
that the defendants violated his due process rights under the
Fourteenth Amendment.
The plaintiff claims that the defendants
violated his right to procedural due process by conducting an
untimely administrative segregation hearing, failing to provide
advance notice of matters that would be addressed at the hearing,
and failing to conduct meaningful periodic reviews of his
segregated status.
Both parties have moved for judgment as a
matter of law with regard to the due process claim.
For reasons
set forth below, I conclude that the plaintiff received
constitutionally adequate process and, even if he did not, the
defendants are protected by qualified immunity.
Second, the plaintiff has moved for a mistrial, claiming
that the defendants inappropriately struck an African-American
member of the venire based on her race.
For reasons that follow,
I conclude that even if race was a factor in the decision to
strike the juror, the defendants have met their burden of showing
that they would have struck the juror had race not been a factor.
The motion for a mistrial is therefore denied.
I.
PROCEDURAL DUE PROCESS
A.
Facts
The following facts are either undisputed or compelled by
the evidence.
On November 12, 2006, the plaintiff had a physical
altercation with two correctional officers at Northern,
defendants Wilbur Strozier and Miguel Diaz.1
At the time of the
altercation, the plaintiff was housed in a Security Risk Group
1
The altercation and its aftermath were the focus of the
three-week trial. The plaintiff testified that Strozier and Diaz
attacked him; the defendants testified that the plaintiff
instigated the fight. The jury found that the plaintiff failed
to prove his claims under the Eighth and First Amendments and
state law. The details of the altercation are not relevant to
the claims addressed in this ruling.
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Safety Threat Member unit.
Immediately following the
altercation, the plaintiff's condition was evaluated by a nurse.
He was then escorted to an isolation cell where he was restrained
with handcuffs and leg irons, linked together with a chain.
This
type of confinement is known as "in-cell restraint status."
The plaintiff was kept in that status for approximately two days.
After being released from in-cell restraint status, the
plaintiff was detained in punitive segregation, a restrictive
status imposed as punishment for violating the Code of Penal
Discipline.
On November 21 and 22, 2006, disciplinary hearings
were held and the plaintiff was found guilty of assaulting the
two officers on November 12.
Each assault conviction carried a
30-day period of punitive segregation, to run consecutively.
Defs. Ex. H, at 1; Defs. Ex. I, at 1.
See
In addition, the plaintiff
was found guilty of threatening an officer on November 11, for
which he was sentenced to 20 days of punitive segregation, see
Defs. Ex. E, at 1, and interfering with safety and security on
November 11, for which he was sentenced to 7 days of punitive
segregation, see Defs. Ex. F, at 3.
Together, these sentences
consigned the plaintiff to punitive segregation from November 11,
2006 until February 9, 2007.
While in punitive segregation, the
plaintiff accumulated two more disciplinary tickets, and his
segregation was extended through March 23, 2007.
J, at 3; Defs. Ex. K, at 1.
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See Defs. Ex.
On February 7, 2007, the plaintiff received a notice that a
hearing would be held to determine whether his "presence in
general population represents a threat to the safety and security
of the institutional community."
See Defs. Ex. L, at 1.
This is
the form of notice the DOC provides when an inmate is going to be
reviewed for placement in administrative segregation.
The notice
cited the November 12 altercation as the reason for the hearing.
The plaintiff was permitted to select an advocate to act on his
behalf and to list witnesses to be called at the hearing.
The
notice indicated that the hearing would occur on February 9, but
the hearing did not occur until February 13.
At the hearing,
prison officials relied not only on the November 12 incident but
also on disciplinary reports the plaintiff had received while in
close custody as the basis for placing him in administrative
segregation.
These disciplinary reports, involving threatening
conduct by the plaintiff, were not mentioned in the hearing
notice.
The plaintiff was placed on administrative segregation
status on February 15, 2007.
The Administrative Segregation Program at Northern consists
of three phases.2
Phase I is the most restrictive and Phase III
the least restrictive.
After completing the requirements for one
2
The Court takes judicial notice of the program summary
posted on the DOC website: Northern Correctional Institution
Administrative Segregation Program,
http://www.ct.gov/doc/lib/doc/pdf/northernascc.pdf.
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phase, an inmate may move to the next phase, and after successful
completion of Phase III, he may be considered for return to the
general population.
An inmate spends a minimum of 120 days in
Phase I, 90 days in Phase II and 90 days in Phase III.
The
inmate's placement is reviewed by classification staff every 7
days for the first two months and every 30 days thereafter.
Administrative Directive 9.4 Attach. B.
See
In addition, assignment
to risk level 5 – the level corresponding to administrative
segregation – is reviewed annually.
See Administrative Directive
9.2 § 10(B)(1), http://www.ct.gov/doc/LIB/doc/PDF/AD/ad0902.pdf.
Records of reviews regarding the plaintiff are incomplete.
The defendants' evidence shows that the plaintiff was approved
for Phase II of the Administrative Segregation Program on March
15, 2007.
See Defs. Ex. L, at 11.
Plaintiff's Offender
Classification History Form reflects reviews on June 29, 2007
(the accompanying note indicates he had progressed to Phase III
on June 14), November 15, 2007, January 9, 2008, and roughly
monthly thereafter.
See Defs. Ex. U, at 2.
In addition, logs of
the plaintiff's Risk History show regular reviews of his risk
level occurring annually or more frequently.
50.
See Defs. Ex. U, at
While the plaintiff has progressed out of the Program at
least once since February 2007, as of the time of the trial, he
remained in administrative segregation at Northern.
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B.
Discussion
The plaintiff challenges three aspects of the procedure that
placed him in administrative segregation and kept him there.
First, he claims that Warden Jeffrey McGill violated his due
process rights by failing to provide him with a timely
administrative segregation classification hearing.
Second, he
claims that defendant Fred Levesque denied him procedural due
process by failing to provide adequate notice of the basis for
the administrative classification hearing.
Third, he claims that
members of the classification committee – defendants McGill,
Light and Salius – denied him due process by failing to conduct
periodic reviews of his administrative segregation status from
the time he was placed there until July 2009.3
At trial, I severed these due process claims from the rest
of the claims in the case and asked the defendants to file a
motion for judgment as a matter of law pursuant to Rule 50 of the
Federal Rules of Civil Procedure.
3
I did so for two principal
In addition to the three challenges discussed in the text,
the plaintiff claims that Northern's procedure for appealing an
administrative segregation classification decision is
constitutionally infirm. He cites no authority for the
proposition that an appeal is constitutionally required and none
has been found. Cf. Hewitt v. Helms, 459 U.S. 460, 476 (1983),
overruled in part on other grounds by, Sandin v. Conner, 515 U.S.
472 (1995) (outlining the procedural requirements for an
administrative segregation decision without mentioning appeal).
I therefore dismiss the plaintiff's claim challenging the
adequacy of his appeal for failure to state a claim on which
relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii).
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reasons.
First, there appeared to be no genuine issue of
material fact with regard to these claims.
Second, a trial on
these claims risked exposing the jury to evidence of the pro se
plaintiff's disciplinary history, which would have prejudiced his
other claims.
See Fed. R. Civ. P. 42(b).
The parties
subsequently filed cross-motions for judgment as a matter of law;
defendants' motion also invokes 28 U.S.C. § 1915(e)(2).
Docs. 286; 296.
See
I now grant the defendants' motion on the due
process claim and deny the plaintiff's.
1.
Liberty Interest
To establish a claim for denial of procedural due process, a
prisoner must show that he had a protected liberty interest and
was deprived of that interest without being afforded the
requisite process.
2000).
See Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir.
A prisoner seeking to establish a liberty interest must
show (1) that the state created a liberty interest through
statute or regulation, and (2) that the confinement at issue
imposed an "atypical and significant hardship on the inmate in
relation to the ordinary incidents of prison life."
See Palmer
v. Richards, 364 F.3d 60, 64 & n.2 (2d Cir. 2004) (quoting Sandin
v. Conner, 515 U.S. 472, 484 (1995)).4
4
The defendants argue that
Wilkinson v. Austin, 545 U.S. 209, 223 (2005), clarified
that the focus of this inquiry is the atypicality prong, not the
language of the pertinent state regulations. However, Wilkinson
also confirmed that a liberty interest in avoiding certain
conditions of confinement does arise from state policies or
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the plaintiff cannot show a state-created liberty interest
because even if administrative segregation imposes an atypical
and significant hardship, Connecticut prisoners have no protected
interest in their classification status, as Connecticut prison
officials have full discretion to make classification decisions.
The plaintiff responds that Connecticut regulations do limit the
discretion of DOC officials to assign prisoners to administrative
segregation and thus he has a liberty interest in being free from
administrative segregation.
For the following reasons, I agree with the plaintiff that
if administrative segregation imposes an atypical and significant
hardship on a Connecticut prisoner, it implicates a liberty
interest.
However, I do not delve into a detailed factual
inquiry to determine whether the plaintiff's administrative
segregation was atypically harsh because, even if the plaintiff
had a protected liberty interest, he was afforded all the process
he was due under the Constitution.
a.
State-Created Liberty Interest
"A state-created liberty interest 'arises when state
statutes or regulations require, in language of an unmistakably
mandatory character, that a prisoner not suffer a particular
deprivation absent specified predicates.'"
Vega v. Lantz, 596
regulations. Id. at 222; see also Iqbal v. Hasty, 490 F.3d 143,
162 (2d Cir. 2007), rev'd on other grounds, Ashcroft v. Iqbal,
556 U.S. 662 (2009).
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F.3d 77, 83 (2d Cir. 2010) (quoting Welch v. Bartlett, 196 F.3d
389, 392 (2d Cir. 1999)).
The Second Circuit has held that
New York's regulations establish a mandatory predicate for
administrative segregation; therefore, New York has created a
liberty interest in freedom from administrative segregation.
Sealey v. Giltner, 197 F.3d 578, 585 (2d Cir. 1999).
See
Under
Sealey, if an inmate in a New York prison experiences atypically
harsh confinement in administrative segregation, he must receive
due process.
See also Giano v. Selsky, 238 F.3d 223 (2d Cir.
2001) (finding 762 days of administrative segregation was a
deprivation of liberty); Giano v. Kelly, No. 89-CV-727(C), 2000
WL 876855, at *3 (W.D.N.Y. May 16, 2000) ("[I]t is clear that
DOCS regulations are couched in language that creates a liberty
interest.").
The Second Circuit has not addressed whether Connecticut's
regulations are sufficiently similar to New York's to establish a
protected liberty interest.
I conclude that they are.
Under
New York regulations, "[a]dministrative segregation admission
results from a determination by the facility that the inmates'
presence in general population would pose a threat to the safety
and security of the facility."
7 § 301.4(b) (2012).
N.Y. Comp. Codes R. & Regs. tit.
Connecticut's Administrative Directive 9.4,
Attachment B, lists the "purpose" of administrative segregation
as: "Classified as a threat to staff, other inmates or facility
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security. (Requires a hearing prior to placement)."
Another
directive defines "administrative segregation" as, "[p]lacement
of an inmate on a restrictive housing status that results in
segregation of the inmate whose behavior or management factors
pose a threat to the security of the facility or a risk to the
safety of staff or other inmates and that the inmate can no
longer be safely managed in general population."
Directive 9.4 § 3(B).
Administrative
During the required administrative
segregation hearing, the hearing officer must examine relevant
evidence and give reasons in support of his determination.
12.
Id. §
While New York's regulations are more concise, Connecticut's
also establish that before an inmate is placed in administrative
segregation, a hearing officer must find that he poses a threat
to safety and security.
Further, Hewitt v. Helms, 459 U.S. 460, 474 (1983),
indicates that prisoners have a liberty interest in being free
from atypically harsh confinement when the confinement is
predicated on a determination that the prisoner is a threat.
As
the Second Circuit stated in Sealey, "[i]f an inmate is to be
placed in atypical confinement (considering both the conditions
and the duration) after being determined, for example, to be a
threat to prison safety, he should have some procedural due
process surrounding the determination that he poses such a
threat."
197 F.3d at 585 (confirming that this "teaching of
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Hewitt" survives Sandin).
Several cases have concluded that Connecticut prisoners have
no liberty interest in their classification.
In Pugliese v.
Nelson, 617 F.2d 916 (2d Cir. 1980), a case concerning federal
prisons, the plaintiffs challenged their classifications, which
prevented them from being favorably considered for furloughs,
transfers, work releases, participation in community activities
and early parole.
The Court emphasized that since those
privileges came at the discretion of the Attorney General – they
were birds in the bush, not in the hand – the classification did
not implicate a liberty interest.
Id. at 923-24.
The Court also
quoted a passage from Moody v. Daggett, 429 U.S. 78, 88 n.9
(1976), reasoning that because Congress has given federal prison
officials discretion over prisoner classification, prisoners have
no entitlement to a classification that allows them to invoke due
process.
Pugliese, 617 F.2d at 923.
This logic has since been
extended to Connecticut state prisons in the district courts.
See Torres v. Howell, No. 3:03CV2227, 2006 WL 1525942, at *16 (D.
Conn. May 30, 2006) ("[T]he improper classification of inmates in
the custody of the Connecticut Department of Correction does not
implicate the inmates' due process rights."); Harris v.
Meulemans, 389 F.Supp.2d 438, 441 (D. Conn. 2005) ("Under
Connecticut law, the Commissioner of Correction retains
discretionary authority to classify prisoners at any security
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level.").
At least one recent district court decision and one state
appellate court decision have taken this line of cases to apply
to administrative segregation.
See Hamer v. Arnone, No.
3:11–cv–279, 2011 WL 2680836, at *3 (D. Conn. July 7, 2011) (as
the plaintiff did "not have a protected liberty interest in his
classification under federal or state law, he fail[ed] to state a
cognizable due process claim based on his transfer to
administrative segregation. . . ."); Vandever v. Comm'r of Corr.,
135 Conn. App. 735, 742 (Conn. App. Ct. 2012) (It is "a decision
within the respondent's discretion to classify the petitioner at
the administrative segregation security level.").
These
decisions rely on the applicable DOC regulation, which states:
"Placement of an inmate on Administrative Segregation shall be at
the discretion of the Director of Offender Classification and
Population Management in accordance with this Directive."
Administrative Directive 9.4 § 12.
While the directive uses the word "discretion," it cabins
that discretion by requiring the director to act in accordance
with the substantive requirements of Administrative Directive
9.4.
And while the Connecticut Commissioner of Correction may
have discretion to classify prisoners, by promulgating
administrative directives, he has given prisoners an expectation
that they will not be confined to administrative segregation in
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the absence of the substantive predicates contained in the
directive.
Therefore, while Connecticut prisoners may have no
protected liberty interest in their classification generally, I
conclude that they, like prisoners in New York, have a statecreated liberty interest in avoiding administrative segregation
based on a finding that they pose a danger.
b.
Atypical and Significant Hardship
For a period of confinement to constitute a deprivation of a
liberty interest, it must impose "atypical and significant
hardship" as compared to the "ordinary incidents of prison life."
Sandin, 515 U.S. at 484.
In 1999, the Second Circuit recognized
that it had not definitively settled what conditions comprise the
"ordinary incidents of prison life" to which a period of
confinement should be compared.
See Sealey, 197 F.3d at 589.
The Circuit has provided some guidance since Sealey.
See
Kalwasinski v. Morse, 201 F.3d 103, 107 (2d Cir. 1999).
In the
context of disciplinary segregation, the Second Circuit's cases
appear to require a district court to compare the conditions of
confinement at issue with the conditions of confinement for
prisoners in the general prison population and, in addition,
prisoners in various forms of administrative segregation and
protective custody.
See Kalwasinski, 201 F.3d at 107; Welch, 196
F.3d at 393; Brooks v. DiFasi, 112 F.3d 46, 48 (2d Cir. 1997).
In Sealey itself, the Circuit noted that conditions of
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administrative confinement at other prisons in the same state and
the frequency and duration of significantly harsh confinements
might be relevant to a liberty claim.
197 F.3d at 589; see also
Kalwasinski, 201 F.3d at 107 ("the frequency and duration of SHU
confinement of prisoners is 'highly relevant' to whether SHU
confinement is atypical of the prison experience. . . .").
Again
in the context of disciplinary segregation, the Court has said
"the extent to which the conditions of the disciplinary
segregation differ from other routine prison conditions" should
be considered.
Wright v. Coughlin, 132 F.3d 133, 136 (2d Cir.
1998).
Thus, under Second Circuit case law, to determine whether
the plaintiff's administrative segregation constituted an
atypical and significant hardship, it appears that his conditions
of confinement would have to be compared with all other
conditions routinely imposed in Connecticut, both at Northern and
elsewhere; in addition, the Court would need to examine how many
prisoners face conditions similar to those the plaintiff has
experienced; and finally, the Court would have to determine how
long the plaintiff was confined to administrative segregation and
decide whether his confinement was of an atypical duration.5
5
This factor provides additional challenges in the
plaintiff's case. The plaintiff was confined in administrative
segregation for several years – well above the 305 days found to
constitute an atypical and significant hardship in Colon v.
Howard, 215 F.3d 227, 231-32 (2d Cir. 2000). But the plaintiff
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This analysis would require receiving detailed evidence from the
parties on the conditions throughout Northern and possibly the
entire Connecticut correctional system.
It is likely that the plaintiff had a protected liberty
interest in being free from the confinement at issue in this
case.
The plaintiff has submitted an affidavit detailing his
conditions in administrative segregation and his previous unit,
and Administrative Directive 9.4, Attachment A, recites the
provisions and management standards for inmates in each phase of
the Administrative Segregation Program.
Viewing the information
contained in these documents in light of the conditions in New
York's Special Housing Units, see, e.g., Palmer v. Richards, 364
F.3d 60, 65 n.3 (2d Cir. 2004), I think the plaintiff's
confinement in Northern's administrative segregation program
could give rise to a deprivation of a protected liberty interest.
I conclude, however, that detailed Sandin review as prescribed by
the Second Circuit is unnecessary in this instance because
failed to progress out of Northern's Administrative Segregation
Program because he continued to accumulate disciplinary reports.
In determining the duration of confinement as it bears on
atypicality, a court "must focus only on the interval during
which Defendant . . . is responsible." Sealey, 197 F.3d at 587;
see also Taylor v. Rodriguez, 238 F.3d 188, 196 (2d Cir. 2001)
("the question arises to what extent, if any, Taylor is
responsible for the length of his confinement to close
custody."). To analyze the duration of confinement, then, the
Court likely should calculate the minimum amount of time the
plaintiff would need to spend in each phase of Northern's
Administrative Segregation Program by virtue of his initial
placement.
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assuming the plaintiff had a protected liberty interest, he was
given all the process he was due under the Constitution.
2.
Process
As mentioned above, the plaintiff claims that his
administrative segregation classification hearing was untimely;
he was given inadequate notice of what would be addressed at the
hearing; and the classification committee failed to engage in
meaningful periodic reviews of his administrative segregation
status.
For the following reasons, I find in favor of the
defendants on all three claims.
a.
Timeliness of the Hearing
Under Hewitt, prison officials are obligated to provide an
inmate with at least an informal hearing "within a reasonable
time after confining him to administrative segregation."
U.S. at 472.6
459
The plaintiff contends that he was placed in
administrative segregation without a hearing on November 22,
2006, and did not receive a classification hearing until February
13, 2007, approximately 90 days after he was first segregated.
He argues that such a long delay constitutes a due process
violation.
At oral argument, he alternatively claimed that his
6
Prior to the Supreme Court's decision in Sandin, the
Second Circuit had found that delays as brief as seven days could
support a claim. See Gittens v. LeFevre, 891 F.2d 38, 41 (2d
Cir. 1989); see also Soto v. Walker, 44 F.3d 169, 172-73 (2d Cir.
1995) (hearing 15 days after segregation states a due process
claim); Russell v. Coughlin, 910 F.2d 75, 78 (2d Cir. 1990) (tenday delay violates due process).
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punitive segregation ended and his administrative segregation
began on January 19, 2007, and that the DOC was required to
provide him with a hearing by that date.7
The defendants contend
that before the plaintiff's initial period of punitive
segregation ended, it was extended to March 23, 2007, based on
new disciplinary reports; thus, they say, the hearing on February
13, 2007, occurred while he was still in punitive segregation and
well before he was placed in administrative segregation.
The
evidence confirms that the plaintiff was never in administrative
segregation without a hearing and, accordingly, his claim fails.
The evidence shows that the plaintiff received 60 days'
punitive segregation for the altercation on November 12, 2006.
See Defs. Ex. H, at 1; Defs. Ex. I, at 1.
But he also received
40 days' punitive segregation for earlier incidents.
Ex. E, at 1; Defs. Ex. F, at 3.
See Defs.
These sanctions placed him in
punitive segregation until February 9, 2007.
Two later
violations extended his term of punishment to late March 2007.
See Defs. Ex. J, at 3; Defs. Ex. K, at 1.
Thus, the February 13
hearing did take place while he was still in disciplinary
confinement as the defendants contend.
7
Given the evidence in the
If an inmate is convicted of assault on a DOC employee,
he may be sanctioned with a maximum of 30 days' punitive
segregation, and he "shall be reviewed for placement in
Administrative Segregation prior to the completion of the
punitive segregation sanction."
Administrative Directive 9.5 §
10(B)(1), http://www.ct.gov/doc/LIB/doc/PDF/AD/ad0905.pdf.
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record, it must be concluded that the plaintiff's due process
rights were not violated with regard to the timing of the
hearing.8
b.
Adequacy of Notice
The Plaintiff claims that the hearing notice he received was
inadequate because it stated only one basis for the proposed
administrative confinement – the November 12 incident – but a
second basis – disciplinary reports he received for threatening
staff – was disclosed at the hearing.
He alleges that the
defendants' failure to provide him with advance notice of their
intention to rely on the disciplinary reports prevented him from
adequately preparing for the hearing.
The defendants respond
that the notice was adequate under the low standard set forth in
Hewitt.
I agree with the defendants that the plaintiff received
"some notice" of the basis for the hearing, as Hewitt requires,
and that the defendants' failure to provide advance notice
regarding the disciplinary reports was not a constitutional
violation.
Hewitt provides, "[a]n inmate must merely receive some
notice of the charges against him and an opportunity to present
8
The plaintiff did not experience any period of
segregation without a hearing, as a hearing on his disciplinary
violations was held on November 22, 2006. The plaintiff's
complaint alleges that the November 22 hearing was inadequate
because he was not present. At oral argument, however, he
confined his claim to the February 13 hearing and subsequent
reviews.
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his views to the prison official charged with deciding whether to
transfer him to administrative segregation."
459 U.S. at 476.
A
"brief summary of the factual basis for the classification
review" suffices, Wilkinson, 545 U.S. at 226, and due process
does not require that the inmate receive "an exhaustive list of
grounds believed to justify placement" and a summary of all
evidence that will be used against him.
Id. at 219.
If an inmate is to be confined for disciplinary reasons, the
notice standard is higher.
(2d Cir. 2001).
Benjamin v. Fraser, 264 F.3d 175, 190
In that case, "written notice of the charges
must be given to the disciplinary-action defendant in order to
inform him of the charges and to enable him to marshal the facts
and prepare a defense."
(1974).
Wolff v. McDonnell, 418 U.S. 539, 564
Plaintiff emphasizes in his brief that Kim v. Hurston,
182 F.3d 113 (2d Cir. 1999) holds, "if an initial ground [for
placement] is changed, the person deprived of liberty is entitled
to know the new ground," id. at 119; however, that case relied on
the procedural due process requirements set out in Wolff, not
those in Hewitt, id. at 120.
And to the extent Taylor, 238 F.3d
at 192, suggests that the Wolff standard should be applied in the
administrative segregation context, it is not controlling in
light of Wilkinson.
Wilkinson makes it clear that when an
inquiry draws heavily on the experience of prison administrators
and implicates the safety of staff and inmates, the procedures
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set forth in Hewitt are more appropriate than those in Wolff.
Wilkinson, 545 U.S. at 228-29.
An administrative segregation
classification hearing is precisely that sort of inquiry.
The notice given to the plaintiff before the hearing was
adequate under the Hewitt standard.
He was notified of the
incident "leading to consideration for [administrative
segregation] placement. . . ."
Wilkinson, 545 U.S. at 226.
While he did not receive advance notice of the second basis for
his confinement – the disciplinary reports for threatening staff
– this additional basis does not raise concern about "the
inmate[] being mistaken for another or singled out for
insufficient reason."
Id.
The plaintiff was permitted an
opportunity for rebuttal at the hearing.
That he may have been
denied an opportunity to "marshal the facts and prepare a
defense" does not mean that he was deprived of his right to due
process.
c. Periodic Review
Finally, the plaintiff alleges that prison administrators
failed to conduct meaningful periodic reviews of his
administrative segregation status as required by the
Constitution.
He contends that "program advancement reviews" –
reviews to determine whether an inmate should proceed to Phase II
or Phase III of the Administrative Segregation Program – are not
"the periodic reviews envisioned by the Supreme Court . . . and
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the Second Circuit . . . ."
I disagree and conclude that these
reviews are adequate to satisfy the procedural due process
requirements set forth in Hewitt.
The Supreme Court has stated:
[A]dministrative segregation may not be used as a
pretext for indefinite confinement of an inmate.
Prison officials must engage in some sort of periodic
review of the confinement of such inmates. This review
will not necessarily require that prison officials
permit the submission of any additional evidence or
statements. The decision whether a prisoner remains a
security risk will be based on facts relating to a
particular prisoner - which will have been ascertained
when determining to confine the inmate to
administrative segregation - and on the officials'
general knowledge of prison conditions and tensions,
which are singularly unsuited for “proof” in any highly
structured manner.
Hewitt, 459 U.S. at 477 n.9.
Northern's Program Reviews
adequately guard against the danger of indefinite confinement.
The review sheets in Defendants' Exhibit U contain reasons for
the committee's recommendation to approve or deny advancement to
the next phase, and they reference recent disciplinary reports,
indicating that the committee takes current information into
account.
The plaintiff urges that these reviews are inadequate
because they do not directly address whether an inmate in Phase I
or Phase II should be in administrative segregation at all – they
only address whether he should move to the next phase.
disagree.
I
Courts "must accord substantial deference to the
professional judgment of prison administrators, who bear a
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significant responsibility for defining the legitimate goals of a
corrections system and for determining the most appropriate means
to accomplish them."
(2003).
Overton v. Bazzetta, 539 U.S. 126, 132
The decision to structure Northern's administrative
segregation program in phases is within the administrators'
discretion.
An inmate who remains free of disciplinary reports
will progress out of administrative segregation, as the plaintiff
has done at least once since filing this lawsuit.
While the
decision in Hewitt may envision direct review of an inmate's
administrative segregation status, it does not indicate that
direct review is necessarily required.
And as defendants note in
their brief, while the Circuit held that direct review hearings
were necessary in Tellier v. Fields, 280 F.3d 69, 84 (2d Cir.
2000), the regulations at issue there required that an inmate be
released when reasons for placement ceased to exist.
There is no
such requirement in Connecticut's regulations.
The plaintiff's records indicate that annual or semi-annual
"regular reviews" of his detention status were performed by the
warden at Northern.
See Defs. Ex. U, at 50.
As plaintiff
discusses, annual reviews are likely too infrequent to satisfy
the requirements of Hewitt.
See, e.g., Toussaint v. McCarthy,
801 F.2d 1080, 1101 (9th Cir. 1986) (abrogated in part on other
grounds by Sandin v. Conner, 515 U.S. 472 (1995)) (finding annual
reviews insufficient).
However, as the committee's periodic
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program advancement reviews are adequate, the plaintiff received
all the process required under Hewitt.9
3.
Qualified Immunity
The defendants argue that even if the plaintiff had a
liberty interest in avoiding administrative segregation, and even
if he received inadequate process, they are protected from
damages liability by the doctrine of qualified immunity.
I
agree.
"Qualified immunity shields government officials from civil
suits for damages 'insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a
reasonable person would have known.'"
Higazy v. Templeton, 505
F.3d 161, 169 (2d Cir. 2007) (quoting Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982)).
A right is clearly established if (1) it
was defined with reasonable specificity at the time of the
defendants' actions, (2) the Supreme Court or Second Circuit had
affirmed the rule, and (3) a reasonable defendant would have
understood from the existing law that his conduct was unlawful.
Young v. County of Fulton, 160 F.3d 899, 903 (2d Cir. 1998).
Even if it was clearly established in 2007 that the
plaintiff had a protected interest in being free from
administrative segregation, a reasonable defendant would not have
9
There are gaps in the records of the plaintiff's periodic
reviews, but none exceeds four months. The plaintiff does not
suggest that more frequent reviews are required - he challenges
the nature of the reviews, not their frequency.
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known that the notice, hearing and periodic reviews provided to
the plaintiff were constitutionally inadequate.
As discussed
above, Hewitt only requires "some notice" of the basis for the
hearing, and Wilkinson rejected a district court proposal that
would have required disclosure of all bases for the hearing in
advance.
The defendants could reasonably believe that the
plaintiff was still in punitive segregation at the time of his
February 13 classification hearing, as in fact he was; therefore,
the hearing was timely.
And neither the Second Circuit nor the
Supreme Court has spoken about the required frequency of periodic
reviews, or whether the reviews must evaluate the inmate's
placement in administrative segregation, as opposed to his
progression through an administrative segregation program.
Therefore, even if I were to find that the plaintiff's rights
were violated, he could not recover damages from the individual
defendants, as they are protected by qualified immunity.
I therefore find in favor of the defendants on the
plaintiff's claim under the Due Process Clause.
II.
PLAINTIFF'S BATSON CHALLENGE
A.
Facts
Jury selection in this case was held on February 14, 2012.
Over the course of the day, the venire was narrowed to fifteen
eligible jurors; the parties had no cause to challenge anyone in
this group of fifteen.
The parties exercised three peremptory
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challenges each, on separate paper forms.
The defendants used
one of their strikes on Juror 622, the only African-American in
the group of fifteen.
When it became apparent that the
defendants had used a strike to remove Juror 622, the plaintiff
challenged the strike under Batson v. Kentucky, 476 U.S. 79
(1986).
In response to the plaintiff's challenge, defendants'
counsel, Assistant Attorney General Terrence M. O'Neill,
expressed concern that Juror 622 had not been forthright during
the voir dire.
Juror 622 had stated that she worked for a teen
pregnancy program.
Mr. O'Neill stated that he and his clients
were familiar with the teen pregnancy program and that the staff
at the program interact with law enforcement on a daily basis.
Mr. O'Neill explained that parole officers, probation officers
and juvenile officers visit the program frequently for reasons
related to problems affecting clients of the program.
While many
of the voir dire questions had focused on jurors' experiences
with, and opinions of, law enforcement personnel, Juror 622 had
not volunteered a response to any of these questions.
Mr.
O'Neill described the jury selection as "a four-hour debate about
the role of law enforcement in our community and experiences that
individuals have had and how those experiences have shaped their
opinions about the society," and he expressed concern that Juror
622, despite being "in the middle of that debate every day," had
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"never even acknowledged that she had contact [with law
enforcement]."
at 4-5.
See Jury Selection - Transcript Excerpt, Doc. 321
In response to a question by the Court, Mr. O'Neill
stated that Juror 622's conduct made him think she might have an
undisclosed bias against law enforcement because she had not been
forthcoming in response to numerous questions that naturally
called for information about her frequent interactions with law
enforcement personnel.
See id. at 9.
In the course of his
comments, Mr. O'Neill also touched on a second factor: noting
that Juror 622 works with troubled youth, he pointed out that the
plaintiff "is very much a troubled youth and [that] led [the
plaintiff] to where he is today."
Mr. O'Neill stated that race
was not a factor in the decision to strike Juror 622.
He pointed
out that he, his co-counsel, and five of the defendants had
jointly decided which jurors to strike, that three of the
defendants are African-American and that two of these defendants
had participated in the joint decisionmaking that led to the
strike of the juror.
I credited Mr. O'Neill's explanation for the strike.
However, after I proposed calling Juror 622 to the sidebar for
further questioning concerning her interactions with law
enforcement, another attorney for the defendants, Assistant
Attorney General Steven R. Strom, added the following comments
concerning the decision to strike the juror:
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[T]his is based on many years of experience.
The question that Mr. Alston proposed to you was
propounded to the jury a number of different times and
she remained entirely silent. The problem is –- and
this is from personal experience with a jury that our
office had with Magistrate Judge Garfinkel –- an
African-American member of the community remained
silent, sat on the jury, and then there was a mistrial,
and at the end of the mistrial, Judge Garfinkel
interviewed the jurors and came out and was considering
holding one of the jurors either in contempt or
considering perjury charges against the juror because
when they were in the jury room, the juror who remained
silent throughout the voir dire, ended up on the jury
and said, if you lived in my community, you know, the
police always have an agenda.
So the concern is the lack of information and the
lack of honesty.
The plaintiff responded that Mr. Strom had made "a blanket
statement about African [American] jurors being dishonest and not
that juror right there [Juror 622] being dishonest."
I denied the plaintiff's Batson challenge, reiterating that
I credited the defendants' race-neutral explanation for the
strike provided by Mr. O'Neill.
The following morning, however,
I expressed concern about Mr. Strom's comments regarding the
juror in Judge Garfinkel's case and asked the defendants to brief
their position under dual motivation analysis.
The defendants
complied, and on February 22, 2012, the plaintiff filed a motion
for a mistrial based on the defendants' strike of Juror 622.
B.
Discussion
The Equal Protection Clause of the Fourteenth Amendment
forbids attorneys from using peremptory challenges to exclude
jurors because of their race.
See Batson, 476 U.S. at 89.
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The
Supreme Court has developed a three-part process for evaluating
Batson challenges.
First, the party claiming a violation – here,
the plaintiff – much make a prima facie showing that a peremptory
challenge was exercised based on race.
Second, if the plaintiff
has established a prima facie case, the party that exercised the
challenge must offer a race-neutral basis for striking the juror.
Finally, the trial judge must consider the parties' submissions
and determine whether purposeful discrimination has been shown.
Miller–El v. Cockrell, 537 U.S. 322, 328–29 (2003).
When a party
shows that race was a substantial motivating factor in the
exercise of a peremptory challenge, the other party may invoke
"the affirmative defense of showing that the same challenge[]
would have been exercised for race-neutral reasons in the absence
of such partially improper motivation."
F.2d 24, 30 (2d Cir. 1993).
Howard v. Senkowski, 986
This defense requires a court to
engage in "dual motivation analysis."
The defendants do not argue that the plaintiff failed to
make a prima facie showing of race discrimination and I conclude
that such a showing was made.
The burden of establishing a prima
facie case is not onerous; it is met by producing "evidence
sufficient to permit the trial judge to drawn an inference that
discrimination has occurred."
162, 170 (2005).
Johnson v. California, 545 U.S.
The plaintiff is African-American and the
defendants struck the only African-American remaining on the
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panel.
Some courts have found this fact sufficient to establish
a prima facie case in appropriate circumstances, while others
have found it insufficient.
See Cousin v. Bennett, 511 F.3d 334,
338 (2d Cir. 2008) (collecting cases).
I conclude that in the
circumstances of this case, defendants' strike was sufficient to
establish a prima facie case.
Mr. O'Neill provided a race-neutral reason for the
decision
to strike Juror 622: he and his clients reasonably believed that
this juror had failed to disclose that she has frequent contact
with law enforcement at her workplace, and that her failure to
disclose this despite being given a number of opportunities to do
so (and after being instructed to err on the side of disclosing
more information rather than less) could indicate a bias against
the defendants.
This race-neutral reason more than met the non-
moving party's "very low" burden.
See McKinney v. Artuz, 326
F.3d 87, 98 (2d Cir. 2003).
The plaintiff contends that Mr. Strom's subsequent comments
concerning the juror in Judge Garfinkel's case permit a
reasonable inference that race was a factor in the decision to
strike Juror 622.
The plaintiff's concern is understandable.
I
conclude, however, that his motion for a mistrial should be
denied.
The defendants have carried their burden of showing that
they would have struck Juror 622 for race-neutral reasons in the
absence of the allegedly improper motivation.
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The defendants'
race-neutral explanation for striking Juror 622, as articulated
by Mr. O'Neill, was entirely credible.
The reasons given for the
strike were clearly relevant, see United States v. Taylor, 92
F.3d 1313, 1328 (2d Cir. 1996), in that the defendants are
employed by the Department of Correction and juror bias against
law enforcement would therefore be prejudicial to them.
The
juror's work on behalf of troubled youth, as noted by Mr.
O'Neill, was itself a sufficient basis for the strike.
The
plaintiff's motion for a mistrial is therefore denied.
III. CONCLUSION
The defendants' motion for judgment [doc. 286] is granted,
and the plaintiff's motion for judgment [doc. 296] is denied.
The plaintiff's motion for a mistrial [doc. 298] is denied.
Clerk will enter judgment for the defendants.
So ordered this 10th day of August 2012.
/s/ RNC
Robert N. Chatigny
United States District Judge
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