Baldwin v. Arnone et al

Filing 59

RULING RE: denying 50 Motion for Summary Judgment; granting 52 Motion for Summary Judgment. Signed by Judge Janet C. Hall on 2/15/13. (Torday, B.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

DELAINE JAMIE BALDWIN,
Plaintiff,
v.
LEO ARNONE, et al.,
Defendants.

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CIVIL ACTION NO.
3:12-cv-243 (JCH)
FEBRUARY 15, 2013

RULING RE: CROSS-MOTIONS FOR SUMMARY JUDGMENT (Docs. No. 50, 52)
I.

INTRODUCTION
The plaintiff, Delaine Jamie Baldwin, alleges in his Amended Complaint that the

defendants1 violated his Fourteenth Amendment right to due process at a disciplinary
hearing and discriminated against and harassed him because of his race and religion.
He asserts claims for violation of his rights under the First, Fourth, Eighth and
Fourteenth Amendments and the Religious Freedom Restoration Act. Pending are
cross-motions for summary judgment. For the reasons that follow, the plaintiff’s Motion
is denied and the defendants’ Motion is granted.
II.

BACKGROUND
A.

Plaintiff’s Motion for Summary Judgment

The defendants contend that the plaintiff’s Motion for Summary Judgment must
be denied because the plaintiff has not complied with court rules. Rule 56(a)1, D. Conn.
L. Civ. R., requires that a motion for summary judgment be accompanied by “a
document entitled ‘Local Rule 56(a)1 Statement,’ which sets forth in separately

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The remaining defendants are Warden Brighthaupt, Captain Danya Baker, Lieutenant Hogan,
Correctional Officer Johnson, Hearing Officer Harpin, Correctional Officer Reginald Cummings and South
District Administrator Angel Quiros.

numbered paragraphs meeting the requirements of Local Rule 56(a)3 a concise
statement of each material fact as to which the moving party contends there is no
genuine issue to be tried.” Rule 56(a)3 requires that each statement in the Rule 56(a)1
Statement “must be followed by a specific citation to (1) the affidavit of a witness
competent to testify as to the facts at trial and/or (2) evidence that would be admissible
at trial.”
The plaintiff has not complied with this requirement. Accordingly, his Motion for
Summary Judgment is denied. The court will consider the plaintiff’s arguments and the
exhibits filed in support of his Motion for Summary Judgment in conjunction with the
defendants’ Motion for Summary Judgment.
III.

STANDARD OF REVIEW
A motion for summary judgment may be granted only where there are no issues

of material fact in dispute and the moving party is therefore entitled to judgment as a
matter of law. See Rule 56(a), Fed. R. Civ. P.; In re Dana Corp., 574 F.3d 129, 151 (2d
Cir. 2009). The moving party may satisfy his burden “by showing–that is pointing out to
the district court–that there is an absence of evidence to support the nonmoving party’s
case.” PepsiCo, Inc. v. Coca-Cola Co., 315 F.3d 101, 105 (2d Cir. 2002) (per curiam)
(internal quotation marks and citations omitted). Once the moving party meets this
burden, the nonmoving party must set forth specific facts showing that there is a
genuine issue for trial. Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). He must
present such evidence as would allow a jury to find in his favor in order to defeat the
motion for summary judgment. Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir.
2000). Merely verifying the allegations of the complaint in an affidavit, however, is
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insufficient to oppose a motion for summary judgment. Zigmund v. Foster, 106 F. Supp.
2d 352, 356 (D. Conn. 2000) (citing cases).
When reviewing the record, the court resolves all ambiguities and draws all
permissible factual inferences in favor of the party against whom summary judgment is
sought. Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 274 (2d Cir. 2009). If there
is any evidence in the record on a material issue from which a reasonable inference
could be drawn in favor of the nonmoving party, summary judgment is inappropriate.
Security Ins. Co. of Hartford v. Old Dominion Freight Line Inc., 391 F.3d 77, 83 (2d Cir.
2004). However, the existence of a mere “scintilla” of evidence supporting the plaintiff’s
position is insufficient to defeat a motion for summary judgment. Harvey v. Homebound
Mortgage, Inc., 547 F.3d 158, 163 (2d Cir. 2008).
IV.

STATEMENT OF FACTS2
The plaintiff has been admitted to prison and transferred among correctional

facilities numerous times between August 1984 and March 2009. On numerous
occasions, the plaintiff underwent inmate orientation during which he received
instruction on inmate grievance procedures. On several occasions, the plaintiff received

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The facts are taken from the defendants’ Local Rule 54(a)1 Statement and the exhibits provided
by both parties. Local Rule 56(a)2 requires the party opposing summary judgment to submit a Local Rule
56(a)2 Statement which contains separately numbered paragraphs corresponding to the Local Rule
56(a)1 Statement and indicates whether the opposing party admits or denies the facts set forth by the
moving party. Each admission or denial must include a citation to an affidavit or other admissible
evidence. In addition, the opposing party must submit a list of disputed factual issues. See D. Conn. L.
Civ. R. 56(a)2 & 56(a)3.
Despite receiving notice of his obligation to respond to the defendants’ Motion for Summary
Judgment and the contents of a proper response, the plaintiff has not provided a proper Local Rule 56(a)2
Statement in opposition to the defendants’ Motion. He only submits a list of disputed factual issues. See
Doc. No. 57. Accordingly, the defendants’ facts are deemed admitted. See D. Conn. L. Civ. R. 56(a)1
(“All material facts set forth in said statement will be deemed admitted unless controverted by the
statement required to be served by the opposing party in accordance with Rule 56(a)2.”).

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an Inmate Handbook which included an explanation of inmate grievance procedures.
Upon the plaintiff’s arrival at Cheshire Correctional Institution in March 2009, he
received an Inmate Handbook. Although he signed a document acknowledging receipt,
the plaintiff stated at his deposition that he did not remember either attending inmate
orientation or receiving the handbook. While incarcerated, the plaintiff has filed inmate
grievances and lawsuits in state and federal court.
During the time relevant to this action, the plaintiff was confined at Cheshire
Correctional Institution serving a fifteen-year sentence for robbery. He had previous
disciplinary charges for possession of contraband. The plaintiff alleges that he is very
religious and prays every morning. At Cheshire Correctional Institution, he kept a Bible,
bread, and an open cup of Kool-Aid at the end of his bed. He used the bread and KoolAid for daily communion. The plaintiff would add Kool-Aid to the cup when inmates
were fed in their cells. During the sixty-one days preceding the incident underlying this
action, the plaintiff claims to have been fasting and praying with others in the prison
Christian community. The prison chaplain was unaware of this practice.
On November 8, 2011, correctional staff inspected all of the cells at Cheshire
Correctional Institution. When they searched the plaintiff’s cell, he and his cellmate
were in the day room out of sight of the cell. The plaintiff was called back to his cell to
retrieve his mattress. The plaintiff alleges that he saw his cellmate’s “stinger” on the
floor. A stinger is a contraband item used by inmates to heat water. The plaintiff
believes that defendant Cummings, the correctional officer searching his cell, must have
seen the stinger and claims that his cellmate was concerned about staff finding the
stinger. The cellmate states that he did not see a stinger on the cell floor or anywhere
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else. Defendant Cummings does not recall seeing a stinger in the plaintiff’s cell.
Defendant Cummings asked the plaintiff if he used the top bunk. When the
plaintiff said, “Yes,” defendant Cummings asked the plaintiff if the cup was his. The
plaintiff again said, “Yes.” The plaintiff’s cellmate stated that, at the time of the search,
the liquid in the cup had “turned” and emitted a foul smell. Defendant Cummings stated
that the cup contained “pruno,” a type of liquor inmates create from various ingredients
that are fermented. The plaintiff denied that the cup contained pruno and stated that it
was juice that he had saved from prior meals. During his deposition, the plaintiff
conceded that the juice had fermented., but disagreed it was pruno.
Defendant Cummings prepared an incident report indicating that he had found a
cup of red liquid with a strong aroma of pruno in the plaintiff’s cell and that the plaintiff
had claimed ownership. Defendant Johnson did not participate in the search, but
smelled the liquid and confirmed the foul odor. The plaintiff received a disciplinary
report for possession of an intoxicating substance.
Defendant Johnson investigated the incident. The plaintiff told defendant
Johnson that he did not want to plead guilty and gave a statement of his version of the
incident. He requested as witnesses his cellmate, two tiermen who gave him the KoolAid, and the prison chaplain who would testify about the fasting, prayer, and communion
activities of the Christian community. Defendant Johnson offered the plaintiff his choice
of three staff members to serve as his advocate. The plaintiff declined all three and
stated that he would represent himself.
The disciplinary hearing was held on November 16, 2011. Defendant Harpin was
the hearing officer. The plaintiff presented his verison of the incident and a statement
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from his cellmate. The plaintiff admitted that the juice belonged to him. He also
suggested at the hearing that the juice may have fermented. Based on the admission
that the cup belonged to the plaintiff and staff statements, defendant Harpin found the
plaintiff guilty of the charge. Defendant Harpin revoked ten days of good time credit,
also know as Risk Reduction Earned Credit, deemed the plaintiff ineligible to accrue five
days of good time credit for the month of November 2011, and imposed sanctions of
fifteen days confinement in punitive segregation, thirty days loss of recreation, and
ninety days loss of telephone privileges.
The plaintiff was confined in segregation from November 8, 2011, through
November 23, 2011. The cells in the segregation unit are the same size as cells in
general population. In both areas, inmates may be permitted to use a day room. While
inmates in segregation receive the same quality and quantity of food as general
population inmates, segregation inmates cannot leave their cells other than for a onehour period of indoor recreation during the week and for showers at least three times
per week. They cannot attend any rehabilitative programs or religious services, or hold
prison jobs. They are allowed only limited personal property but can send mail and file
inmate grievances. Segregation inmates may meet with clergy daily in their cells or the
unit day room. They have contact only with their cellmates, cannot use the telephone or
watch television, and must eat their meals in their cells.
Inmates in general population eat in the prison dining hall, can keep personal
property in their cells, including televisions and music disc players, can make telephone
calls, send and receive mail, make purchases from the commissary, watch television
and have visitors. They are entitled to daily showers, can attend religious services and
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rehabilitative programs with other inmates, and can hold prison jobs. They also attend
group recreation at least three times per week.
On December 8 and 14, 2011, the plaintiff wrote to Deputy Warden Powers
asking about the status of his grievance regarding the disciplinary hearing. On
December 15, 2011, Deputy Warden Powers received the second request and became
involved. The plaintiff was called to the grievance coordinator’s office and provided
assistance in properly submitting his grievance. In the new grievance form, the plaintiff
indicated that he was filing a grievance because he was not allowed all requested
witnesses, the liquid was not tested, defendant Johnson was involved in the search and
the hearing, and he was not provided a statement of the reasons for the guilty finding.
The plaintiff also indicated that he was appealing the disciplinary finding because his
right to due process was violated in several ways. Defendant Quiros found no due
process violations and denied the appeal.
In January 2012, the plaintiff commenced a state habeas action complaining of
discrimination based on race and religion relating to the November 8, 2011 search of his
cell. The issues raised in the habeas petition include many of the claims in this action.
V.

DISCUSSION
The defendants move for summary judgment on five grounds: (1) the case

should be dismissed for abuse of judicial process; (2) the plaintiff failed to exhaust his
administrative remedies on the claims of discrimination and harassment; (3) there is no
evidence to support the claims of discrimination and harassment; (4) the due process
claims are barred under Heck v. Humphrey, 512 U.S. 477 (1994); and (5) the plaintiff
did not suffer an atypical and significant hardship to support a claim for denial of due
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process.
In opposition to the defendants’ Motion, the plaintiff argues that the court should
not consider the Motion because he has not received responses to all of his discovery
requests.3 Rule 56(d) of the Federal Rules of Civil Procedure considers the situation
when the non-moving party can show by affidavit or declaration that, for specified
reasons, he cannot present facts essential to justify his opposition. The plaintiff has
provided a reason, but fails to identify any facts he cannot present to address the
arguments asserted by the defendants. As these arguments are mainly procedural, the
court fails to see how the lack of information going to the merits of his claims would
prevent the plaintiff from properly opposing the defendants’ Motion for Summary
Judgment. Accordingly, the court concludes that application of the relief specified in
Rule 56(d) is not warranted.
A.

Abuse of Judicial Process

The defendants first move to dismiss the case because the plaintiff was not
truthful in completing the Amended Complaint. The plaintiff commenced this action in
February 2012. When he filed his Amended Complaint in June 2012 on the court’s
form, the plaintiff indicated that he had not begun any other lawsuits in state or federal
court regarding the same facts alleged in this action. He also left blank the section

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The court is aware that Baldwin filed a Motion to Compel (Doc. No. 49), which has not yet been
acted on. In his Motion, Baldwin requests employment records for the defendant guards as well as any
grievance reports filed by other inmates against those guards. The court does not see how those
documents, if they exist, would provide evidence to create material issues of fact in connection with his
opposition to the defendants' Motion for Summary Judgment, or to justify granting his Motion.

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requiring him to list any previous lawsuit, unrelated to this action, that he filed in federal
court within the pervious ten years. See Doc. No. 22, at 9. The plaintiff declared under
penalty of perjury that all statements in the Amended Complaint were true and correct.
See Doc. No. 22, at 11.
The defendants have provided a copy of a state habeas action dealing with the
same facts as this case. The state habeas action was filed in January 2012, just weeks
before the plaintiff commenced this action. A search of court records also reveals three
unrelated federal cases filed by the plaintiff during the last ten years. Defendants’
attorney explored these deficiencies with the plaintiff during his November 2012
deposition. See Doc. No. 52-3, Defs.’ Mem. Ex. B, at 42-45. The plaintiff conceded his
error and stated that he forgot about the prior cases. Despite being informed of the
false statement, the plaintiff has taken no steps to correct the error.
Other courts have dismissed complaints under similar circumstances. One court
noted that litigating in bad faith or engaging in manipulative tactics warrants dismissal
under 28 U.S.C. § 1915, and sanctions for knowingly filing pleadings containing false
contentions under Fed. R. Civ. P. 11. See Glenn v. Gillis, No. 5:12-cv-133-RS-GRU,
2012 WL 3240674, at *2 (N.D. Fla. Jul. 11, 2012) (prisoner’s claim that he forgot about
prior cases because prison lost the file containing his litigation history insufficient to
excuse failure to report previously filed cases), report and recommendation adopted by
2012 WL 3241138 (N.D. Fla. Aug. 9, 2012); see also Redmon v. Lake County Sheriff’s
Office, No. 10-11070, 2011 WL 576601 (11th Cir. Feb. 10, 2011) (affirming dismissal of
prisoner’s civil rights complaint that did not disclose prior lawsuit because prisoner
claimed to have misunderstood the form). Although pro se litigants are held to a less
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stringent standard than attorneys, pro se status has never excused mistakes regarding
procedural rules, see McNeil v. United States, 508 U.S. 106, 113 (1993), or making
false statements.
The complaint form used in Glenn included language warning the inmate that
failure to disclose all prior civil cases may result in the dismissal of the case. 2012 WL
3240674, at *1. The Amended Complaint form the plaintiff completed contained no
similar warning. Although the plaintiff is a college graduate, see Doc. No. 52-3 at 9, and
should understand both the directions on the complaint form and the meaning of a
declaration under penalty of perjury, he was not specifically warned that the case could
be dismissed if he failed to comply with the court’s procedural rules. Accordingly, the
court declines to dismiss the case for abuse of judicial process. The plaintiff is now on
notice, however, that any future noncompliance with court rules in this case, or any
other case he files, may result in the dismissal of a case.
B.

Exhaustion of Administrative Remedies

The defendants next argue that summary judgment should be granted on all
claims, other than the due process claims regarding the disciplinary hearing, because
the plaintiff failed to exhaust his administrative remedies with regard to these claims.
The Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), requires an inmate to
exhaust “administrative remedies as are available” before bringing an “action . . . with
respect to prison conditions.” The Supreme Court has held that this provision requires
an inmate to exhaust administrative remedies before filing any type of action in federal
court, regardless of whether the inmate may obtain the specific relief he desires through
the administrative process. Woodford v. Ngo, 548 U.S. 81, 85 (2006). Inmates must
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properly exhaust their administrative remedies. This requirement includes complying
with all procedural requirements, including filing deadlines, so the inmate’s issue is
reviewed on the merits. See id. at 90, 94-95. The inmate must exhaust his
administrative remedies with regard to each claim he asserts in his federal complaint.
See, e.g., Ortiz v. McBride, 380 F.3d 649, 653-54 (2d Cir. 2004) (concluding that inmate
failed to exhaust Eighth Amendment claim because inmate grievance did not mention
that claim), cert. denied, 543 U.S. 1187 (2005); Turner v. Goord, 376 F. Supp. 2d 321,
325 (W.D.N.Y. 2005) (citing cases to support position that inmate must exhaust
administrative remedies on all asserted claims and permitting a lawsuit to proceed on
unexhausted claims would “make a ‘mockery of the exhaustion requirement’”).
Exhaustion of administrative remedies may be excused only if administrative remedies
are not available to the inmate, where prison officials actively interfere with the inmate’s
ability to invoke his administrative remedies or where special circumstances exist. See
Hemphill v. State of New York, 380 F.3d 680, 686 (2d Cir. 2004).
The definition of grievable matters encompasses the plaintiff’s claims of
discrimination, harassment, and fabrication of evidence. See Doc. No. 53-13, Defs.’
Mem. Ex. L, Administrative Directive 9.6, § 4, effective October 1, 2011. Directive 9.6,
Section 6(A), requires that the inmate attempt to resolve the matter informally before
filing a grievance. If this process is unsuccessful, or the inmate has not received a
response to his attempt at informal resolution, Section 6(C) allows him to proceed to the
next step, to file a grievance. The grievance must be filed within thirty days of the
occurrence giving rise to the grievance and must be placed in the Administrative
Remedies Box for collection.
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The plaintiff attended several inmate orientations and received inmate
handbooks which contained an explanation of the grievance procedure. He most
recently received a handbook in March 2009, when he arrived at Cheshire Correctional
Institution. He filed more that one inmate grievance while incarcerated. The plaintiff
also has filed lawsuits in federal court and acknowledged at his deposition that he was
required to exhaust his administrative remedies before filing those lawsuits. Finally,
when the plaintiff filed an Inmate Request prior to commencing this action, he used the
proper form. Thus, the plaintiff was aware of the need to exhaust his administrative
remedies and the procedures to do so.
Prior to commencing this action, however, the plaintiff sought administrative relief
only with regard to his due process claims, namely, that he was denied the right to call
witnesses at his disciplinary hearing, assistance in preparing for the hearing, a written
statement of the reasons for the guilty finding, a fair and impartial decision-maker, and
his request to have the cup of juice presented at the hearing. The plaintiff also argued
that he was found guilty based on a vague statement that he possessed red liquid in a
cup that smelled like pruno. The plaintiff did not utilize his administrative remedies with
regard to any other claims included in the amended complaint.
At his deposition, the plaintiff conceded that no correctional staff member
prevented him from filing a grievance regarding the other issues. See Doc. No. 52-3, at
60. Although the plaintiff claimed to have grieved some of the other issues, he has
presented no evidence to support this claim or show that he made any attempt to
exhaust his administrative remedies on the other claims. The defendants have
submitted a copy of the Cheshire Correctional Institution grievance log which shows that
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the plaintiff filed only the December 16, 2011 administrative remedy form. See Doc. 529, Defs.’ Mem. Ex. H, at 7. The plaintiff has submitted no evidence in opposition to the
defendants’ Motion for Summary Judgment establishing any special circumstances to
excuse the exhaustion requirement. In fact, he does not address this argument in his
Memorandum. The defendants’ Motion for Summary Judgment is granted as to all
claims except the due process claims identified above.
C.

Due Process Claims

The defendants next argue that the plaintiff’s due process claims are barred and
that the plaintiff has not established that he was subjected to an atypical and significant
hardship as a result of the disciplinary finding.
Prisoners must use habeas corpus remedies when they challenge the validity or
duration of their confinement. In addition to precluding a direct challenge under section
1983, the Supreme Court also precludes a section 1983 action for damages where
success in the section 1983 action would necessarily imply the unlawfulness of a
conviction or sentence. Such claims are not cognizable until the conviction or sentence
has been invalidated or called into question by, for example, issuance of a writ of
habeas corpus. See Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). This holding
has been extended to cases challenging prison disciplinary procedures where the guilty
finding resulted in the loss of earned good time credit. See Edwards v. Balisok, 520
U.S. 641, 646 (1997). Therefore, “a state prisoner’s § 1983 action is barred (absent
prior invalidation)–no matter the relief sought, (damages or equitable relief), no matter
the target of the prisoner’s suit (state conduct leading to conviction or internal prison
proceedings)–if success in that action would necessarily demonstrate the invalidity of
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confinement or its duration.” Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005).
Prisoners often receive mixed sanctions at a disciplinary proceeding, some
affecting the conditions of confinement and others the duration of confinement. The
Second Circuit permits an inmate to proceed on a challenge to the sanctions affecting
the conditions of his confinement without satisfying the favorable termination rule
established in Balisok only if he permanently foregoes any challenge to the sanctions
affecting the duration of his confinement. See McEachin v. Selsky, 225 Fed. App’x 36,
37 (2d Cir. 2007).
As a result of the disciplinary proceeding being challenged, the plaintiff lost ten
days of earned good time credit and was prevented from earning five more days. He
also was sanctioned to fifteen days confinement in punitive segregation, thirty days loss
of recreation and ninety days loss of telephone privileges. Thus, he received mixed
sanctions. As the claim stands, it is precluded by Balisok because the plaintiff has not
shown that he has successfully challenged the disciplinary finding.
Under McEachin, the plaintiff should be offered the opportunity to waive all
claims relating to sanctions affecting the duration of confinement. The court need not
offer that opportunity in this case because, even if the plaintiff were to agree to a waiver,
summary judgment is warranted on the remaining claims.
In Sandin v. Connor, 515 U.S. 472 (1995), the Supreme Court considered the
requirements to state a claim for denial of procedural due process. The Supreme Court
held that the plaintiff must demonstrate both a protected liberty or property interest and
that he had been deprived of that interest without being afforded due process of law. To
establish a protected liberty or property interest, the plaintiff must show that the state
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created a liberty interest in a statute or regulation and the deprivation of that interest
caused him to suffer an atypical and significant hardship. See Tellier v. Fields, 280 F.3d
69, 81 (2d Cir. 2000).
The Sandin decision holds that confinement in the restrictive housing unit for
thirty days for disciplinary reasons did not implicate a constitutionally protected liberty
interest. 515 U.S. at 485-86. Further, the Second Circuit has held that confinement in
restrictive housing for less that 101 days does not constitute an atypical and significant
hardship sufficient to state a claim under Sandin. See Sealey v. Giltner, 197 F.3d 578,
589 (2d Cir. 1999) (finding that 101-day confinement in restrictive housing, while
“doubtless unpleasant,” did not constitute atypical and significant hardship); Lewis v.
Sieminski, No. 3:08-CV-728(JCH), 2010 WL 3827991, at *6 (D. Conn. Sept. 22, 2010)
(noting that "the decisions in the Second Circuit are unanimous that keeplock or
[segregated housing unit] confinement of 30 days or less in New York prisons is not
‘atypical or significant hardship’ under Sandin"); see also Frazier v. Coughlin, 81 F.3d
313, 317-18 (2d Cir. 1996) (holding that twelve day confinement in segregation,
followed by eleven month confinement in close supervision unit did not state a
cognizable claim for denial of due process); Riddick v. Arnone, No. 3:11cv631(SRU),
2012 WL 2716355, at *4 (D. Conn. Jul. 9, 2012) (holding that ten-day confinement to
quarters without showers, telephone usage or hygiene products is not an atypical and
significant hardship).
The plaintiff spent fifteen days in segregation. As the Second Circuit has held
that such a brief confinement in restrictive housing does not constitute an atypical and
significant hardship, this sanction is insufficient to support a claim for denial of due
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process. The additional sanctions of thirty days loss of recreation and ninety days loss
of telephone privileges, imposed after the plaintiff returned to general population, do not
alter this determination. See Young v. Shipman, No. 3:03-CV-551(RNC), 2007 WL
1064316, at *1 (D. Conn. Mar. 30, 2007) (sanctions of ten days in punitive segregation
followed by fifteen days confinement to quarters and fifteen days confinement to
quarters with ninety days’ loss of telephone privileges did not constitute atypical and
significant hardship to raise due process claim under Sandin); see also, e.g., Lewis v.
Dretke, 54 Fed. App’x 795 (5th Cir. 2002) (holding that thirty days of cell and
commissary restrictions, ninety days loss of telephone privileges, fifteen days of solitary
confinement, reduction in classification status, and a change of custody level from
minimum to medium did not implicate any constitutionally protected liberty interests);
Davis v. Smalls, 2010 WL 5887815, at *4 (S.D. Cal. Dec. 15, 2010) (holding that loss of
telephone and yard privileges are not the type of restrictions that would constitute an
atypical and significant hardship to support a due process claim under Sandin). Plaintiff
did not suffer an atypical and significant hardship. Accordingly, the defendants’ Motion
for Summary Judgment is granted as to the due process claims.
VI.

CONCLUSION
The plaintiff’s Motion for Summary Judgment (Doc. No. 50) is DENIED. The

defendants’ Cross-Motion for Summary Judgment (Doc. No. 52) is GRANTED. The
Clerk is directed to enter judgment in favor of the defendants and close this case.

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SO ORDERED.
Dated this 15th day of February 2013, at New Haven, Connecticut.

/s/ Janet C. Hall
Janet C. Hall
United States District Judge

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