Proctor v. LeClaire

Filing 102

MEMORANDUM-DECISION and ORDER - That defendants' 89 Motion for Summary Judgment is GRANTED. That Proctor's second amended complaint (Dkt. No. 48) is DISMISSED. Signed by Judge Gary L. Sharpe on 10/14/2015. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
PATRICK PROCTOR,
9:09-cv-1114
(GLS/DEP)

Plaintiff,
v.
LUCIEN J. LECLAIRE, JR. et al.,

Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Kirkland, Ellis Law Firm
601 Lexington Avenue
New York, NY 10022

GEOFFREY A. DAVID, ESQ.
ELLIOT C. HARVEY
SCHATMEIER, ESQ.
ERIC S. MERIN, ESQ.

FOR THE DEFENDANTS:
HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
The Capitol
Albany, NY 12224

CATHY Y. SHEEHAN
JOSHUA L. FARRELL
Assistant Attorney Generals

Gary L. Sharpe
District Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Patrick Proctor commenced this action pursuant to 42 U.S.C.

§ 1983, alleging defendants1 violated his due process rights under the
Fourteenth Amendment by not engaging in meaningful periodic review of
his administrative segregation. (2d Am. Compl., Dkt. No. 48.) Before the
court is defendants’ motion for summary judgment. (Dkt. No. 89.) For the
reasons that follow, defendants motion is granted.
II. Background
A.

Facts2
Since 1989, Proctor has been an inmate in the custody of DOCCS

serving a thirty-two and one-half years to life sentence for second degree
murder and attempted escape. (Defs.’ Statement of Material Facts (SMF)
¶ 1, Dkt. No. 89, Attach. 2.) In 1994, Proctor and three other inmates
escaped from Shawangunk Correctional Facility and remained at large for
five hours with the assistance of an accomplice who was on parole. (Id.
¶ 3; Dkt. No. 90, Attach. 17 at 2.) Upon capture, Proctor was sentenced to
the special housing unit (SHU) for nine years and one month on findings of

1

Defendants are the New York State Department of Corrections and Community
Supervision (DOCCS) current and former Deputy Commissioners of Correctional Facilities,
Joseph Bellnier and Lucien J. LeClaire, Jr., and the current and former Acting DOCCS
Commissioners, Anthony J. Annucci and Brian Fischer. (See generally 2d Am. Compl., Dkt.
No. 48.) Proctor also named Glenn S. Goord, DOCCS Commissioner from 1999 through
2006, as a defendant, but he was later voluntarily dismissed. (Dkt. No. 75.)
2

Unless otherwise noted, the facts are undisputed.

2

escape, weapons possession, assault, and fighting. (Defs.’ SMF ¶¶ 3-5.)
After Proctor’s disciplinary SHU confinement, DOCCS recommended
he be retained in SHU under administrative segregation (hereinafter “Ad
Seg”). (Id. ¶ 6.) To support Proctor’s Ad Seg placement, DOCCS cited
incidents including his 1994 escape, other attempted escapes, a 1990
stabbing of an inmate, and misconduct while in SHU. (Id. ¶ 7; Dkt. No. 90,
Attach. 17 at 2.) Proctor’s SHU misconduct included stabbing a SHU
inmate, starting multiple fires, and hiding a razor in his rectum. (Defs.’
SMF ¶ 7.) After a December 2003 hearing, the hearing officer found that
Proctor posed a threat to the safety and security of the facility and ordered
his placement in Ad Seg.3 (Id. ¶ 8); see also N.Y. Comp. Codes R. &
Regs. (NYCRR), tit. 7 § 301.4(b). Proctor has been confined to Ad Seg
since December 2003, or over 4,000 days, and, as of June 2014, was the
second longest inmate confined in Ad Seg. (Pl.’s Additional SMF ¶¶ 3-4,
Dkt. No. 90, Attach. 1.)
Under DOCCS’ regulations, a three-member facility committee must
review an inmate’s Ad Seg status every sixty days and report on: (1) the

3

Proctor unsuccessfully challenged his original Ad Seg placement. See Proctor v.
Kelly (Proctor I), 9:05-CV-0692, 2008 WL 5243925 (N.D.N.Y. Dec. 16, 2008).

3

rationale for an inmate’s initial Ad Seg placement, (2) the inmate’s behavior
and attitude in Ad Seg, and (3) additional factors that support or detract
from the inmate’s continued placement. See 7 NYCRR § 301.4(d)(1)(i)(iii). If an inmate has been designated for Central Office review, as in
Proctor’s case, a three-member Central Office committee reviews the
facility committee report and any written statements from the inmate. See
id. § 301.4(d)(3); (Defs.’ SMF ¶ 16.) It then recommends whether the
inmate should remain in Ad Seg or be released to the general prison
population. See 7 NYCRR § 301.4(d)(3). The deputy commissioner for
correctional facilities then determines whether the inmate should remain in
or be released from Ad Seg based on the committee reports and any
written statements from the inmate. See id.
Since Proctor’s Ad Seg placement, DOCCS has reviewed his status
every sixty days. (Defs.’ SMF ¶ 35.) Proctor submitted letters in support of
his release from Ad Seg, which the Central Office committee considered at
his periodic reviews and responded to in their reports and
recommendations to the deputy commissioner for correctional facilities.
(See generally Dkt. No. 90, Attach. 4.) Defendants Lucien J. LeClaire, Jr.
and Joseph Bellnier served consecutively as the Deputy Commissioner for
4

Correctional Facilities during Proctor’s time in Ad Seg. (Dkt. No. 89,
Attach. 4 ¶ 1, Attach. 6 ¶ 1.) LeClaire and Bellnier testified that they
reviewed an inmate’s AD Seg status by looking at the reports of both
committees, any additional materials submitted by the inmate, and by
occasionally speaking with committee members. (Dkt. No. 90, Attach. 5 at
24, 26, Attach. 8 at 23-24.) Both LeClaire and Bellnier reviewed Proctor’s
Ad Seg status and determined that the original reasons for his placement
established that he “continue[d] to pose an extreme threat to the safety and
security of any correctional facility.” (Defs.’ SMF ¶ 21; Dkt. No. 89, Attach.
4 ¶¶ 14-15, Attach. 6 ¶¶ 14-15.) Proctor contends he has been primarily
retained in Ad Seg because of his 1994 escape from Shawangunk. (Pl.’s
SMF ¶ 21, Dkt No. 90, Attach. 1; Dkt. No. 90, Attach.12 at 41.)
In support of his due process claims, Proctor identifies evidence that
allegedly shows his periodic reviews were not meaningful or were pretext
for indefinite Ad Seg placement. Proctor cites Bellnier’s testimony that his
staff fills out his portion of an inmate’s periodic review and then presents it
for Bellnier to sign. (Dkt. No. 90, Attach. 5 at 30.) Additionally, Proctor
notes that Bellnier admits he was not trained on how to make final Ad Seg
determinations. (Id.) Proctor also points to LeClaire’s testimony, where he
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refused to speculate whether forty years of positive behavior would warrant
Proctor’s release from Ad Seg. (Dkt. No. 90, Attach. 8 at 36.)
Proctor identifies testimony from committee members not named as
defendants. Christopher DeLutis, a facility committee member on thirteen
of Proctor’s periodic reviews, testified that Proctor could not do anything to
change his belief that Proctor was a flight risk. (Dkt. No. 90, Attach. 6 at
46, Attach. 11 at 7.) DeLutis also testified that Proctor could not do
anything to change his opinion about whether Proctor should be released
to the general prison population, stating he “believe[d] [Proctor] is right
where he belongs.” (Dkt. No. 90, Attach. 6 at 45.) Joseph Porcelli, a
facility committee member for half of Proctor’s periodic reviews, testified
that Proctor’s aging may be a positive release factor. (Dkt. No. 90, Attach.
9 at 43, Attach. 11 at 7.) Additionally, Porcelli testified that, in his
experience, an inmate in Ad Seg has never been released back to the
general prison population. (Dkt. No. 90, Attach. 9 at 18.)
Although the facility committee recognized his improved behavior in
one review, (Dkt. No. 90, Attach. 4 at 116), Proctor notes that neither the
facility committee or the Central Office committee ever recommended his
release from Ad Seg, (Dkt. No. 90, Attach. 4). Proctor also identifies
6

numerous periodic reviews with identical language. (Id. at 6-7, 10-11, 1415, 16-17, 140-41.) In addition, Proctor submits that his escape,
absconding, and assaults on staff and inmates occurred ten years before
his first periodic review. (Dkt. No. 90, Attach. 13.)
B.

Procedural History
Proctor commenced this action pro se in 2009 against LeClaire.

(Compl., Dkt. No. 1.) In 2010, Proctor filed an amended complaint to
allege additional factual support that the sixty-day periodic reviews of his
Ad Seg placement satisfied the continuing violation doctrine. (Am. Compl.,
Dkt. No. 19; Dkt. No. 11.) The court dismissed that pleading reasoning
that Proctor’s challenge to his placement in Ad Seg in Proctor v. Kelly
(Proctor I), 9:05-CV-0692, 2008 WL 5243925 (N.D.N.Y. Dec. 16, 2008),
barred him from challenging the periodic reviews of his Ad Seg under claim
and issue preclusion. (Dkt. No. 30 at 6-10; Dkt. No. 31.) Proctor
appealed. (Dkt. No. 32.)
On appeal, the Second Circuit vacated this court’s judgment and
remanded for further proceedings. (Dkt. No. 36); see Proctor v. LeClaire,
715 F.3d 402, 417 (2013). The Second Circuit held that Proctor was not
precluded from challenging his periodic reviews because they were not the
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same transaction as his initial placement, Proctor, 715 F.3d at 413, and
Proctor did not have a full and fair opportunity to litigate the constitutionality
of his periodic reviews, id. at 416.
After the Second Circuit’s mandate, counsel appeared for Proctor for
the first time. (Dkt. No. 39.) In 2013, Proctor filed a second amended
complaint adding additional defendants, (Dkt. No. 48), and defendants
answered, (Dkt. No. 60). After discovery, defendants moved for summary
judgment. (Dkt. No. 89.)
III. Standard of Review
The standard of review pursuant to Fed. R. Civ. P. 56 is well
established and will not be repeated here. For a full discussion of the
standard, the court refers the parties to its decision in Wagner v. Swarts,
827 F. Supp. 2d 85, 92 (N.D.N.Y. 2011), aff’d sub nom. Wagner v.
Sprague, 489 F. App’x 500 (2d Cir. 2012).
IV. Discussion
A.

Procedural Due Process
Defendants argue that Proctor’s procedural due process rights were

not violated because Proctor received all the process he was due through
periodic reviews. (Dkt. No. 89, Attach. 7 at 1-4.) Defendants contend that
8

Proctor’s timely reviews were not meaningless because Bellnier and
LeClaire thoroughly considered the committees’ recommendations and
determined that the original reasons for Proctor’s placement remained
compelling. (Id. at 3-4.) Proctor counters that there remain material issues
of fact regarding whether his procedural due process rights were violated.
(Dkt. No. 90 at 4.) First, Proctor argues he has a liberty interest because
of the duration and conditions of his confinement. (Id. at 5-7.) Second,
Proctor contends that his periodic reviews were not meaningful because
they were pretext for his indefinite confinement, contained conclusory
language, and relied on inappropriate support. (Id. at 9-19.)
Under the Fourteenth Amendment, states may not “deprive any
person of . . . liberty . . . without due process of law.” U.S. Const. amend.
XIV, § 1. Procedural due process rights may extend to inmates, see Wolff
v. McDonnell, 418 U.S. 539, 556 (1974), and a claim for violations of such
rights requires the inmate to show that: (1) he or she had a liberty interest
and (2) was deprived of that interest without sufficient process. See Tellier
v. Fields, 280 F.3d 69, 79-80 (2d Cir. 2000). An inmate has a statecreated liberty interest if his or her confinement “imposes atypical and
significant hardship . . . in relation to the ordinary incidents of prison life.”
9

Sandin v. Conner, 515 U.S. 472, 484 (1995). Although the Second Circuit
has not adopted a bright line rule, it has held that an inmate generally has
a liberty interest under Sandin if he or she is confined under “normal SHU
conditions” for at least 305 days. Colon v. Howard, 215 F.3d 227, 231 (2d
Cir. 2000). Additionally, Sandin applies to challenges of confinement in
SHU for administrative or disciplinary reasons. See Arce v. Walker, 139
F.3d 329, 335 (2d Cir. 1998).
Here, Proctor has been confined to SHU under Ad Seg for over
4,000 days. (Pl.’s Additional SMF ¶ 3.) This duration alone is sufficient to
invoke Proctor’s liberty interest because it far exceeds the 305-day
threshold identified in Colon and, thus, demonstrates that Proctor
experienced an “atypical and significant hardship” under Sandin. See
Bowens v. Smith, No. 9:11-CV-784, 2013 WL 103575, at *7 (N.D.N.Y. Jan.
8, 2013) (holding that an inmate’s allegation of a 500-day confinement in
Ad Seg was sufficient to state a liberty interest).
Once an inmate demonstrates a liberty interest, a court must
evaluate how much process is due. See Matthews v. Eldridge, 424 U.S.
319, 334-35 (1976). For continued placement in Ad Seg, due process
requires that “[p]rison officials . . . engage in some sort of periodic review”
10

of an inmate’s status. Hewitt v. Helms, 459 U.S. 460, 477 n. 9 (1983).4 Ad
Seg cannot be a “pretext for [the] indefinite confinement of an inmate.” Id.
Nevertheless, “periodic review can be informal and non-adversarial,” Giano
v. Selsky, 91-CV-0166, 2002 WL 31002803, at *7 (N.D.N.Y. Sept. 5, 2002),
and “the original reasons for placing [an] inmate in [Ad Seg] may continue
to be compelling,” Giano v. Kelly, No. 89-CV-727(C) (Kelly II), 2000 WL
876855, *17 (W.D.N.Y. May 16, 2000).
Defendants and Proctor agree that Proctor received periodic reviews
every sixty days since his initial Ad Seg placement. (Defs.’ SMF ¶ 35; Pl.’s
SMF ¶ 35.) The parties sharply dispute whether those reviews were
constitutionally sufficient. Defendants contend that LeClaire and Bellnier
complied with due process because their determinations were based on a
“thorough review and consideration of the recommendations of both
committees” and DOCCS followed the procedure set forth by the
regulations. (Dkt. No. 89, Attach. 4 ¶¶ 7, 13-14, Attach. 6 ¶¶ 7, 13-14.)
Furthermore, defendants assert that Proctor’s escape history and previous
assaults on inmates and staff remain compelling factors that support his

4

“Although Sandin abrogated . . . Hewitt’s methodology for establishing the liberty
interest, [Hewitt] remain[s] instructive for [its] discussion of the appropriate level of procedural
safeguards.” Wikinson v. Austin, 545 U.S. 209, 229 (2005).

11

continued Ad Seg placement. (Dkt. No. 89, Attach. 7 at 3-4.)
Proctor maintains that defendants conducted perfunctory reviews.
However, the evidence that Proctor cites does not demonstrate that the
periodic reviews by LeClaire and Bellnier were “pretext for [Proctor’s]
indefinite confinement.” Hewitt, 459 U.S. at 477 n. 9. Although Bellnier’s
staff filled out his portion of the periodic review, Bellnier independently
reviewed the facility and Central Office committee reports as well as any
letters Proctor submitted before signing off on Proctor’s continued Ad Seg
placement. (Dkt. No. 90, Attach 5 at 24-26.) Nor does LeClaire’s refusal
to speculate about the period of good behavior necessary for Proctor’s
release show that Proctor’s periodic reviews were not meaningful. Like
Bellnier, LeClaire reviewed the committee reports, Proctor’s letters, and
consulted with committee members when necessary before making his
determination. (Dkt. No. 90, Attach. 8 at 23-24, 41.)
Proctor relies on Giano v. Kelly (Kelly I), 869 F. Supp 143 (W.D.N.Y.
1994), to support his contention that his reviews were not meaningful. In
Kelly I, the court held that there was a genuine issue of material fact as to
whether the inmate’s review was meaningful, because prison officials failed
to explain the apparent change in the reason for the inmate’s confinement.
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See id. at 149-51. The inmate was originally placed in Ad Seg because of
an attempted escape, unknown reasons surrounding an incident in which
he was stabbed, and the conditions of his current prison placement. See
id. at 149. However, later periodic reviews suggested he only remained in
Ad Seg because of the stabbing incident. See id. Unlike Kelly I, Proctor’s
periodic reviews demonstrate that his continued confinement is based on
the same reasons as his initial placement. (See generally Dkt. No. 90,
Attach. 4); see Selsky, 2002 WL 31002803 at *7 (explaining that, to satisfy
due process, an inmate does not even need to be notified of his periodic
reviews if the reasons for his Ad Seg confinement remain the same).
Furthermore, Proctor had the opportunity and, in fact, did submit
letters to the committees in support of his release. See Kelly I, 869 F.
Supp at 151 (suggesting that due process is more likely satisfied if inmate
has an opportunity to show he is no longer a threat). The Central Office
committee considered and directly responded to Proctor’s letters. (See
generally Dkt. No. 90, Attach. 4.) Additionally, unlike Kelly I, Proctor
received reports of his periodic reviews which detailed the rationale for his
confinement as well as the dates and the results of his reviews. See Kelly
I, 869 F. Supp at 151 (suggesting that due process is more likely satisfied
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if inmates are provided with the reasons for their confinement and the
dates and results of their periodic reviews); see also 7 NYCRR § 301.4(d).
Accordingly, although Proctor had a liberty interest in remaining free of Ad
Seg, he received sufficient process.
B.

Substantive Due Process
Defendants argue that they are entitled to summary judgment on

Proctor’s substantive due process claim because Proctor cannot challenge
his periodic reviews on this ground until a procedural due process violation
has been found. (Dkt. No. 94 at 4.) Proctor contends that questions of
fact remain regarding whether defendants violated his substantive due
process rights because: (1) prison officials continually approved his
confinement in Ad Seg despite its “devastating effects” on him and (2) the
manner that defendants periodically review his Ad Seg placement
demonstrates that he will never be released. (Dkt. No. 90 at 20-21.)
The Fourteenth Amendment also has a substantive component that
“protects individuals against government action that is arbitrary,
conscience-shocking, or oppressive in a constitutional sense but not
against government action that is incorrect or ill-advised.” Lowrance v.
Achtyl, 20 F.3d 529, 537 (2d Cir. 1994) (internal quotation marks and
14

citations omitted). “To establish a violation of substantive due process
rights, a plaintiff must demonstrate that the state action was ‘so egregious,
so outrageous, that it may fairly be said to shock the contemporary
conscience.’” Okin v. Vill. of Cornwall-On-Hudson Police Dep’t, 577 F.3d
415, 431 (2d Cir. 2009) (quoting Cty. of Sacramento v. Lewis, 523 U.S.
833, 847 n.8 (1998)).
“[P]rison officials’ deliberate indifference to inmate welfare in nonemergency situations can be conscience-shocking because officials have
time to make unhurried judgments, upon the chance for repeated
reflection, largely uncomplicated by the pulls of competing obligations.”
Lombardi v. Whitman, 485 F.3d 73, 82 (2d Cir. 2007) (internal quotation
marks and citation omitted); see also Cty. of Sacramento, 523 U.S. at 851.
When employed, “[t]he deliberate indifference standard applied in a
substantive due process case is the same as that applied in Eighth
Amendment cases.” Estate of Johnson v. Weber, 785 F.3d 267, 272 (8th
Cir. 2015). Deliberate indifference is the reckless disregard of a risk of
harm of which a person is aware. See Farmer v. Brennan, 511 U.S. 825,
837 (1994). Thus, “the official must both be aware of facts from which the
inference could be drawn that a substantial risk of serious harm exists, and
15

he must also draw the inference.” Id.
Here, although Proctor offers a medical expert report, defendants did
not exhibit conscious-shocking behavior because they were never made
aware of the alleged devastating effects of Proctor’s continued placement
in Ad Seg. To support the defendants’ awareness, Proctor relies solely on
general knowledge about inmates in solitary confinement. (Dkt. No. 90 at
21-22.) However, Proctor fails to raise a question of material fact showing
that defendants were aware of the alleged harms to Proctor. Thus,
summary judgment is granted for defendants.5
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that defendants’ motion for summary judgment (Dkt. No.
89) is GRANTED; and it is further
ORDERED that Proctor’s second amended complaint (Dkt. No. 48) is
DISMISSED; and it is further
ORDERED that the Clerk close this case; and it is further

5

Furthermore, having ruled that the periodic reviews of Proctor’s Ad Seg status are
not pretext for indefinite confinement, there is no factual question regarding whether Proctor
could ever be released. Accordingly, defendants are entitled to summary judgment on this
theory as well.

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ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
October 14, 2015
Albany, New York

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