Trapani v. Annucci et al

Filing 15

MEMORANDUM-DECISION AND ORDER: It is hereby ORDERED, that the 11 Amended Complaint is accepted for filing and is the operative pleading; and it is further ORDERED, that the following claims SURVIVE sua sponte review and require a response: (1) Pla intiff's Eighth Amendment claims against defendants Annucci, Morton, and Colvin; and (2) Plaintiff's Fourteenth Amendment due process claims against defendants Annucci, Morton, and Colvin; and it is further ORDERED, that all remaining S ection 1983 claims are DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for failure to state a claim upon which relief may be granted; and it is further ORDERED, that the Clerk shall add Robert Morton, Dominic D 9;Agostino, and Timothy Bruce to the docket as defendants and TERMINATE defendants D'Agostino and Bruce from this action; and it is further ORDERED, that the Clerk shall issue summonses and forward them, along with copies of the Amended Compla int, to the United States Marshal for service upon the defendants Annucci, Morton, and Colvin. The Clerk shall forward a copy of the summons and Amended Complaint by mail to the Office of the New York State Attorney General, together with a copy of this Decision and Order; and it is further ORDERED, that the Clerk shall serve a copy of this Decision and Order on Plaintiff. Signed by Senior Judge Lawrence E. Kahn on November 19, 2021. (Copy served via regular mail on plaintiff).(rep)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
DAMIAN R. TRAPANI,
Plaintiff,
-against-

9:21-CV-0681 (LEK/ML)

ANTHONY J. ANNUCCI, et al.,
Defendants.

MEMORANDUM-DECISION AND ORDER
I.

INTRODUCTION
Plaintiff Damian Trapani commenced this action by filing a pro se civil rights complaint

pursuant to 42 U.S.C. § 1983 (“Section 1983”), together with an application for leave to proceed
in forma pauperis (“IFP”). Dkt. No. 1 (“Complaint”); Dkt. No. 3 (“IFP Application”).1 By
Decision and Order entered on July 27, 2021, this Court granted Plaintiff’s IFP Application, and
following review of the Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. §
1915A, dismissed the claims asserted in the Complaint for failure to state a claim upon which
relief may be granted. Dkt. No. 7 (“July 2021 Order”). In light of Plaintiff’s pro se status, he was
afforded an opportunity to submit an amended complaint. Id. at 13–15.
Presently before the Court is Plaintiff’s amended complaint. Dkt. No. 11 (“Amended
Complaint”).

1

By Order entered on June 16, 2021, this action was administratively closed based on
Plaintiff’s failure to comply with the filing fee requirement. Dkt. No. 2. Thereafter, Plaintiff filed
his IFP Application, together with the inmate authorization form required in this District, and the
Clerk was directed to reopen this action and restore it to the Court’s active docket. See Dkt. Nos.
3, 4, 5.

II.

DISCUSSION
A. The Complaint and July 2021 Order
In his original Complaint, Plaintiff asserted claims based on alleged wrongdoing that

occurred during his incarceration within the New York State Department of Corrections and
Community Supervision (“DOCCS”) in 2018. See generally Compl.
The Complaint was construed to assert Eighth and Fourteenth Amendment claims against
Superintendent of Downstate Correctional Facility Cunningham, Superintendent of Five Points
Correctional Facility Colvin, and DOCCS Commissioner Annucci based on allegations that
Plaintiff was placed in punitive segregation and wrongfully incarcerated after his 2016 criminal
conviction was overturned. See July 2021 Order at 4–6.
After reviewing the Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. §
1915A, the Court dismissed Plaintiff’s claims without prejudice for failure to state a claim upon
which relief may be granted. See id. at 6–15.
B. Overview of the Amended Complaint
The Amended Complaint asserts Section 1983 claims based on alleged wrongdoing that
occurred after Plaintiff’s 2016 criminal conviction was overturned. See generally Am. Compl.
The following facts are set forth as alleged in the Amended Complaint.
“On July 22, 2016, plaintiff was sentenced to a term of imprisonment of 2 - 4 years in
state prison after he entered a plea to attempted burglary in the third degree, in open court, at the
Schenectady County Superior Court.” Am. Compl. ¶ 24. On October 21, 2016, Plaintiff was
transferred into DOCCS’ custody pursuant to a commitment order signed by Schenectady County
Superior Court Judge Matthew Spyneiwski. Id. ¶ 25.
2

On June 7, 2018, “the judgment entered by the Schenectady County Superior Court was
reversed, on the law, and the indictment underlying plaintiff’s 2016 sentence and conviction for
attempted burglary was dismissed by the Supreme Court of the State of New York, Third
Department, Appellate Division[.]” Id. ¶ 26. The Appellate Division granted the People “leave to
resubmit any appropriate charges to another grand jury[.]” Id. ¶ 27. At the time of the Appellate
Division’s decision, Plaintiff was “confined in punitive segregation” at Five Points Correctional
Facility (“Five Points C.F.”). Id. ¶¶ 28–29.
On June 12, 2018, Plaintiff was released from DOCCS’ custody and transported by the
Schenectady County Sheriff’s Department to Schenectady County Correctional Facility
(“Schenectady County C.F.”). Id. ¶ 30. Immediately before Plaintiff was released from DOCCS’
custody, he was told to pack up his personal belongings because he was being released, and given
“state issued release clothes,” “a receipt of the funds released from his inmate account, along
with a check for the stated amount[,]” and “a Property Receipt[.]” Id. ¶ 31.
Following Plaintiff’s arrival at Schenectady County C.F. on June 12, 2018, he was placed
in punitive segregation over his objection. Id. ¶ 36. Defendant Corrections Sergeant Timothy
Bruce supervised Plaintiff’s admission into punitive segregation, and informed Plaintiff that he
was being placed there because that is where he was housed at Five Points C.F. Id. ¶ 37.
Defendant Schenectady County Sheriff Dominic D’Agostino authorized Plaintiff’s placement in
punitive segregation. Id. ¶ 77.
The next day, Plaintiff was transported to the County Courthouse for proceedings before
the Superior Court of Schenectady County. Id. ¶ 38. Prior to appearing before the judge, Plaintiff
was advised by his assigned counsel that the People had “elected to present the matter before
3

another grand jury panel and . . . were extending a plea deal of 1.5 - 3 years incarceration as a
predicate felon [sic] instead of the 2 - 4 years he was initially sentenced to[.]” Id. ¶ 39. Plaintiff
advised his attorney that he would take the deal “because he already had enough time in to
qualify for conditional release.” Id.
After Plaintiff visited with his attorney, he was brought before Judge Spyneiwski, the
sentencing judge who presided over his 2016 conviction. Id. ¶ 42. Judge Spyneiwski “arraigned
plaintiff on felony informations charging him with burglary in the third degree and criminal
mischief in the fourth degree” and Plaintiff then “pled guilty to a Superior Court Information
charging him with attempted burglary in the third degree in full satisfaction of the entire docket[,]
and was sentenced to 1.5 - 3 years incarceration in state prison.” Id. ¶ 44. Plaintiff was given
credit for the time he already served for the 2016 burglary conviction and sentence that was
reversed, and advised by Judge Spyneiwski that his sentence would “be treated as a new and
separate commitment[,]” which was also noted in his new commitment papers. Id. ¶¶ 45–46.
Following the court proceeding, Plaintiff encountered a detainee named Armando Henry,
who told Plaintiff that he would be placed back in punitive segregation and denied early release
once he re-entered DOCCS custody, as this previously happened to Henry. Id. ¶¶ 47–48.
On June 14, 2018, Plaintiff was transported by the Schenectady County Sheriff’s
Department to Downstate Correctional Facility (“Downstate C.F.”). Am. Compl., ¶ 49. Although
Plaintiff arrived at Downstate C.F. with “a new set of sentencing minutes and a new commitment
order[,]” he was “classified . . . as a routine court return pursuant to the 2016 commitment order
that was no longer valid[.]” Id. ¶ 52. As a result of Plaintiff’s classification, and despite his
objection, he was placed back in punitive segregation. Id. ¶ 53.
4

One of the corrections sergeants at the facility “disagreed with the decision made by the
other staff to place plaintiff back in punitive segregation for disciplinary sanctions imposed on
him prior to him being released and committed again to the custody of DOCCS.” Id. ¶ 54. This
official later advised Plaintiff that the issue of whether Plaintiff should be housed in punitive
segregation “was taken all the way up to the Superintendent[,]” defendant Robert Morton, Jr., “to
no avail.” Id. ¶ 55. This official also advised Plaintiff that “it was essentially up to [defendant
Morton] whether to place an inmate, upon returning from a court-ordered discharge, back in
punitive segregation.” Id.
At some point, Plaintiff was “interview[ed]” by “parole staff.” Id. ¶ 56. Plaintiff was not
“released within the 10-day time period following his interview with parole staff.” Id. “Instead,
shortly after the 10-day period expired, plaintiff was transferred back to [Five Points C.F.]” and
placed in punitive segregation over his objection. Id. The same sergeant who supervised
Plaintiff’s release on June 12, 2018, “supervised the escort of plaintiff back in punitive
segregation” at Five Points C.F. Id. ¶ 57.
Following Plaintiff’s arrival at Five Points C.F., “a few of [his] books and hygiene items”
that he acquired prior to the reversal of his 2016 conviction were returned to him, but “the bulk
of his personal belongings” were not. Id. ¶ 58. Plaintiff also received a “time computation sheet”
shortly after arriving at Five Points C.F., which indicated his parole hearing date, his conditional
release date, and his maximum expiration date, which was December 10, 2018. Id. ¶¶ 66–67. By
the time Plaintiff received this document, his parole and conditional release dates had already
lapsed. Id. ¶ 67.

5

Thereafter, Plaintiff “was made to go before the Time Allowance Committee[.]” Id. ¶ 68.
The Time Allowance Committee (“TAC”) recommended that “all good behavior allowances be
withheld from plaintiff . . . based on his poor behavior and lack of progress and achievement in
the treatment programs he was assigned” before his 2016 conviction was reversed. Id. ¶ 71. The
TAC’s decision was “adopted and upheld” by the Superintendent of Five Points C.F., defendant
Colvin, and the Commissioner of DOCCS, defendant Annucci. Id. ¶ 72.
“Despite the loss of good behavior allowances, plaintiff was released on December 2,
2018,” eight days before his maximum expiration date. Id. ¶ 74. Between June 12 and December
2, 2018, Plaintiff continuously remained in punitive segregation. Id. ¶ 76. Plaintiff was housed in
punitive segregation during this time, despite his status as a “new commitment[,]” because
defendants Annucci, Colvin, and Morton, authorized and enforced “a policy or procedure of not
releasing on paper state prison inmates [assigned to] punitive segregation” after their underlying
criminal convictions and sentences are “annulled and expunged[,]” “failed to exercise adequate
supervision over subordinates[,]” and “failed to provide or enforce lawful and proper guidelines
and procedures[.]” Id. ¶¶ 77, 83.
The conditions of confinement that Plaintiff endured in punitive segregation “were
disproportionately different from the conditions of confinement [he] experienced . . . [as] an
inmate in regular general population.” Id. ¶ 59. Among other things, Plaintiff was denied his
medically prescribed boots while confined in punitive segregation, and as a result, was “unable to
properly exercise at all.” Id. ¶ 65.
Liberally construed, the Amended Complaint asserts the following Section 1983 claims
against defendants Annucci, Morton, Colvin, D’Agostino, and Bruce based on Plaintiff’s
6

continued placement in punitive segregation, and the withholding of good behavior allowances,
following the reversal of his 2016 criminal conviction: (1) First Amendment retaliation claims;
(2) Fourth Amendment false imprisonment claims; (3) Eighth Amendment cruel and unusual
punishment claims; and (4) Fourteenth Amendment due process claims.2
For a more complete statement of Plaintiff’s claims, reference is made to the Amended
Complaint.
C. Analysis
Because Plaintiff is proceeding in forma pauperis and is an inmate suing government
employees, his Amended Complaint must be reviewed in accordance with 28 U.S.C. §
1915(e)(2)(B) and 28 U.S.C. § 1915A(b). The legal standard governing the dismissal of a
pleading for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. §

2

The Amended Complaint is devoid of any allegations which plausibly suggest that any
of the named defendants were personally involved in depriving Plaintiff of personal property
items that were allegedly lost or destroyed. In any event, the law is well-settled that the
unauthorized intentional destruction of a prisoner’s property may not be the basis for
constitutional claims if sufficient post deprivation remedies are available to address the claim.
See Hudson v. Palmer, 468 U.S. 517, 531 (1984) (citing Parratt v. Taylor, 451 U.S. 527, 541
(1981)); see also Rivera-Powell v. New York City Board of Elections, 470 F.3d 458, 465 (2d Cir.
2006) (“When the state conduct in question is random and unauthorized, the state satisfies
procedural due process requirements so long as it provides meaningful post deprivation
remedy.”). Moreover, “New York in fact affords an adequate post-deprivation remedy in the
form of, inter alia, a Court of Claims action.” Jackson v. Burke, 256 F.3d 93, 96 (2d Cir. 2001);
Davis v. New York, 311 Fed. App’x 397, 400 (2d Cir. 2009) (“The existence of this adequate
post-deprivation state remedy would thus preclude [plaintiff’s] due process claim under § 1983
[for lost personal property].”); Vogelfang v. Capra, 889 F. Supp. 2d 489, 509 (S.D.N.Y. 2012)
(dismissing Fourth Amendment claim based on unlawful confiscation of property because
adequate state post-deprivation remedies were available). Thus, the Court does not construe the
Amended Complaint to assert a cognizable Section 1983 claim based on the alleged loss or
destruction of Plaintiff’s personal property items.
7

1915A(b) was discussed at length in the July 2021 Order and it will not be restated in this
Decision and Order. See July 2021 Order at 2–4 .
1. First Amendment Claims
Courts must approach claims of retaliation “‘with skepticism and particular care’ because
‘virtually any adverse action taken against a prisoner by a prison official—even those otherwise
not rising to the level of a constitutional violation—can be characterized as a constitutionally
proscribed retaliatory act.’” Davis v. Goord, 320 F.3d 346, 352 (2d Cir. 2003) (quoting Dawes v.
Walker, 239 F.3d 489, 491 (2d Cir. 2001), overruled on other grounds, Swierkiewicz v. Sorema
N.A., 534 U.S. 506 (2002)). To state a plausible claim, a plaintiff asserting a First Amendment
retaliation claim must advance “non-conclusory” allegations establishing “(1) that the speech or
conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff,
and (3) that there was a causal connection between the protected speech [or conduct] and the
adverse action.” Id. (quoting Dawes, 239 F.3d at 492). “[A] complaint which alleges retaliation
in wholly conclusory terms may safely be dismissed on the pleadings alone.” Flaherty v.
Coughlin, 713 F.2d 10, 13 (2d Cir. 1983). “A prisoner’s filing of a grievance against a
corrections officer is protected by the First Amendment.” Baskerville v. Blot, 224 F. Supp. 2d
723, 731 (S.D.N.Y. 2002) (citing cases).
Here, the only potential “adverse action” identified in the Amended Complaint is
Plaintiff’s placement in punitive segregation, and the withholding of good time credits, following
the reversal of the 2016 conviction.
With respect to the withholding of good time credits, the Amended Complaint is devoid
of any allegations which plausibly suggest that Plaintiff engaged in protected activity about
8

which members of the TAC were aware before recommending that all good time behavior
allowances be withheld from Plaintiff. In addition, the allegations in the Amended Complaint
make clear that the TAC’s recommendation was “based on [plaintiff’s] poor behavior[.]” Am.
Compl. ¶ 71. In other words, the Court has no basis to plausibly infer that good time credits were
withheld from Plaintiff following the reversal of his 2016 conviction because he engaged in some
form of protected activity.
With respect to Plaintiff’s placement in punitive segregation, the Amended Complaint
generically alleges that Plaintiff objected to this placement following the reversal of his 2016
conviction. See id. ¶¶ 36, 53, 56. However, the Amended Complaint lacks any details regarding
who Plaintiff spoke with regarding his “objection” to being placed in punitive segregation, or
what exactly he said. Furthermore, by Plaintiff’s own allegations, he was advised that he was
being held in punitive segregation during his confinement at Schenectady County C.F. and
Downstate C.F. because he was in punitive segregation prior to the reversal of his 2016
conviction, and was not deemed to be a new commitment. See id. ¶¶ 37, 52, 54. Thus, the Court
also has no basis to plausibly infer that Plaintiff was held in punitive segregation after the
reversal of his 2016 conviction because he engaged in some form of protected activity.
Accordingly, Plaintiff’s First Amendment retaliation claims are dismissed pursuant to 28
U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for failure to state a claim upon which relief
may be granted.
2. Fourth Amendment Claims
A claim for false arrest or imprisonment brought pursuant to Section 1983 “rest[s] on the

9

Fourth Amendment right of an individual to be free from unreasonable seizures, including arrest
without probable cause.” Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) (citation omitted).
In this case, Plaintiff’s 2016 conviction was reversed on June 7, 2018, and he remained in
DOCCS’ custody until June 12, 2018. However, Plaintiff entered a guilty plea on June 13, 2018,
and he was given credit for all the prison time he had served up to that date, which did not
exceed the maximum term of the sentence to which he pled guilty. Thus, Plaintiff was not
unlawfully confined at any point prior to June 13, 2018.
Furthermore, insofar as Plaintiff alleges that he was denied good time credits to which he
was entitled and/or wrongfully held in punitive segregation after his guilty plea on June 13, 2018,
his claims are more properly analyzed under the Eighth and Fourteenth Amendments. See July
2021 Order at 6, n.6 (“[W]here a person has been convicted of a crime, his ‘claims regarding
unlawfully extending the term of his incarceration must necessarily arise from either the Eighth
Amendment’s prohibition of cruel and unusual punishment or the Fourteenth Amendment Due
Process Clause.’” (quoting Francis v. Fiacco, No. 15-CV-0901, 2018 WL 1384499, at *6
(N.D.N.Y. Mar. 16, 2018) (collecting cases in support of finding and dismissing Fourth
Amendment claim for false imprisonment arising out of alleged unlawful prolonged detention
following lawful conviction)); see also Hurd v. Fredenburgh, 984 F.3d 1075, 1083–84 (2d Cir.
2021) (recognizing that a claim based on wrongful confinement beyond a prisoner’s conditional
release date may be cognizable under either the Eighth or Fourteenth Amendments); Resnick v.
Hayes, 213 F.3d 443, 448–49 (9th Cir. 2000) (affirming dismissal of Fourth Amendment claim
because convicted prisoner yet to be sentenced “had no protected liberty interest in not being
confined in the SHU”).
10

Accordingly, Plaintiff’s Fourth Amendment claims are dismissed pursuant to 28 U.S.C. §
1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for failure to state a claim upon which relief may be
granted.
3. Eighth and Fourteenth Amendment Claims Based on Withholding Good Time
Credits from Plaintiff
The legal standards governing Plaintiff’s Eighth and Fourteenth Amendment claims were
discussed in detail in the July 2021 Order and will not be restated herein. See July 2021 Order at
7–13.
Here, Plaintiff alleges that the TAC incorrectly recommended that all good time behavior
allowances be withheld from him—a recommendation that defendants Colvin and Annucci
subsequently adopted—after his 2016 conviction was reversed and he pled guilty to, and received
a new sentence for, third degree attempted burglary on June 13, 2018. According to Plaintiff,
because he received a new sentence and new commitment order after his 2016 conviction was
reversed, he was entitled to an unidentified amount of good time credits after he returned to
DOCCS’ custody on June 14, 2018.
As an initial matter, pursuant to Plaintiff’s guilty plea on June 13, 2018, he had yet to
exceed his maximum confinement period as of the date that his 2016 conviction was reversed.
Moreover, the Amended Complaint does not allege that Plaintiff was ever awarded good time
credits, or engaged in behavior or participated in programs that entitled him to good time credits,
before his 2016 conviction was reversed. In addition, the Court has no legal basis to conclude
that Plaintiff’s new commitment status entitled him to good time credits that he did not earn

11

during the period of his incarceration leading up to the reversal of his 2016 conviction.3 Thus, the
Court has no basis to plausibly infer that it was inappropriate for the TAC to consider Plaintiff’s
prison disciplinary history prior to the reversal of the 2016 conviction and recommend
withholding good time credits based on this history, let alone that the TAC’s recommendation
amounted to deliberate indifference and/or a denial of a liberty interest.
Additionally, insofar as Plaintiff contends that his continued confinement in punitive
segregation after the reversal of his 2016 conviction prevented him from earning good time
credits, the law is well-settled that an inmate’s lost opportunity for good time credits is not a
harm of constitutional magnitude. See July 2021 Order at 8, n. 8 (collecting cases).
Accordingly, Plaintiff’s Eighth and Fourteenth Amendment claims based on the
withholding of good time credits are dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28
U.S.C. § 1915A(b) for failure to state a claim upon which relief may be granted.
4. Eighth and Fourteenth Amendment Claims Based on Plaintiff’s Placement in
Punitive Segregation
Liberally construed, the Amended Complaint includes new allegations which plausibly
suggest that (1) Plaintiff’s 2016 conviction was reversed, and the indictment was dismissed (with
leave to re-charge before a new grand jury), on June 7, 2018, (2) DOCCS officials treated
3

The law is well-settled that decisions related to granting or withholding good time
credits are discretionary. See Fifield v. Eaton, 669 F. Supp. 2d 294, 297 (W.D.N.Y. 2009) (where
state law gives officials discretion, “an inmate has no constitutional right to . . . participation in
prison programs which might expedite release”); N.Y. Correct. Law § 803(a) (explaining that
inmates may receive credit to reduce their sentence for “good behavior and efficient and willing
performance . . . in an assigned treatment program [but] . . . may [also have such credits]
withheld, forfeited or canceled in whole or in part for . . . failure to perform properly in the . . .
program assigned.”). Additionally, New York law holds that conditional release does not become
mandatory unless and until an inmate is approved for good-time credit. See N.Y. Penal Law §
70.40(1)(b).
12

Plaintiff as a released prisoner after his 2016 conviction was reversed and before he pled guilty to
a new charge on June 13, 2018, (3) Plaintiff received a new commitment order after he pled
guilty to a new charge on June 13, 2018, (4) the new commitment order was provided to
DOCCS’ officials on or about June 14, 2018, (5) despite the new commitment order, Plaintiff
remained continuously confined in punitive segregation after he pled guilty to a new charge on
June 13, 2018, through his release date on December 2, 2018, (6) Plaintiff’s confinement in
punitive segregation was based on disciplinary violations that occurred before his 2016
conviction was reversed, and (7) defendants Annucci, Morton, and Colvin were aware of, and
approved, Plaintiff’s placement in punitive segregation.4 The Amended Complaint also includes
new allegations regarding the conditions of Plaintiff’s confinement in punitive segregation.
In light of these new allegations, and mindful of the Second Circuit’s direction that a pro
se Plaintiff’s pleadings must be liberally construed, the Court finds that Plaintiff’s Eighth and
Fourteenth Amendment claims against defendants Annucci, Morton, and Colvin survive sua
sponte review. In so ruling, the Court expresses no opinion as to whether these claims can
withstand a properly filed dispositive motion.
The Court, however, reaches a different conclusion with respect to Plaintiff’s claims
against defendants D’Agostino and Bruce for several reasons. First, by Plaintiff’s own account,
he was only housed in segregated confinement at Schenectady County C.F. for a total of two
4

Although the original complaint alleged that Plaintiff’s 2016 conviction was
“overturned[,]” it was unclear from the allegations in that pleading whether the indictment giving
rise to the criminal charges against Plaintiff was dismissed, or whether instead the New York
State Appellate Division ruled that an error was committed with respect to Plaintiff’s sentencing.
The original complaint also did not include any allegations regarding the manner in which
Plaintiff was treated after his 2016 conviction was reversed, and before he pled guilty to new
charges.
13

days, and he had not been deemed innocent of the charge to which he originally pled guilty at the
time of his arrival. Rather, the Appellate Division reversed the 2016 conviction, with leave to represent charges to a new grand jury, on the grounds that Plaintiff “was deprived of an opportunity
to consult with counsel” after the felony complaint against him was first filed and before he
entered a guilty plea, and the record was silent as to whether there was a valid waiver of his right
to counsel. See People v. Trapani, 162 A.D.3d 1121, 1123 (3d Dep’t 2018). Under such
circumstances, it is not clear that Plaintiff was entitled to pretrial detainee status upon his arrival
at Schenectady County C.F., which is the only way Plaintiff’s brief confinement in segregated
housing could even be considered a harm of constitutional magnitude. See Bell v. Wolfish, 441
U.S. 520, 535 (1979) (holding that government officials may not subject pretrial detainees to
punishment “prior to an adjudication of guilt in accordance with due process of law”); Frazier v.
Coughlin, 81 F.3d 313, 317–18 (2d Cir. 1996) (per curiam) (convicted prisoner’s confinement in
a special housing unit for 12 days does not implicate a liberty interest); Hynes v. Squillace, 143
F.3d 653, 657 (2d Cir. 1998) (pre-hearing confinement in keeplock for twenty-one days did not
deprive prisoner of liberty interest); Arce v. Walker, 139 F.3d 329, 336 (2d Cir. 1998)
(segregated confinement for eighteen days did not implicate liberty interest); Bowens v. Smith,
No. 11-CV-0784, 2013 WL 103575, at *10 (N.D.N.Y. Jan. 8, 2013) (“Confinement in SHU, in
itself, notwithstanding its additional restrictions on inmates, has not been held to constitute cruel
and unusual punishment.”), report and recommendation adopted by 2013 WL 103596 (N.D.N.Y.
Jan. 8, 2013); Hamilton v. Fisher, No. 10-CV-1066, 2012 WL 987374, at *8 (N.D.N.Y. Feb. 29,
2012) (“‘[N]ormal’ conditions of SHU confinement do not constitute an Eighth Amendment
violation.” (citations omitted)), report and recommendation adopted by 2012 WL 987122
14

(N.D.N.Y. Mar. 22, 2012); Jackson v. Johnson, 15 F. Supp. 2d 341, 363 (S.D.N.Y. 1998) (“The
mere placement in keeplock for 99 days is not sufficiently egregious to constitute cruel and
unusual punishment under the Eighth Amendment”) (collecting cases).
Second, even assuming Plaintiff was entitled to pretrial detainee status upon his arrival at
Schenectady County C.F., the allegations in the Amended Complaint plausibly suggest that
Plaintiff was placed in segregated confinement upon his arrival at the facility because he engaged
in wrongdoing while in DOCCS’ custody that resulted in disciplinary sanctions, and was
scheduled to appear before a court the following day for arraignment and, perhaps, continued
incarceration. In other words, the Amended Complaint lacks any allegations which plausibly
suggest that Plaintiff was placed in segregated confinement at the facility in order to punish him
for something he did there. See Covino v. Vermont Dep’t of Corr., 933 F.2d 128, 129 (2d
Cir.1991) (“‘[T]he transfer of an inmate to less amenable and more restrictive quarters for
nonpunitive reasons’ is not a right protected by the due process clause itself.” (quoting Hewitt v.
Helms, 459 U.S. 460, 468 (1983))); McFadden v. Solfaro, Nos. 95-CV-1148, 95-CV-3790, 1998
WL 199923, at *8 (S.D.N.Y. Apr. 23, 1998) (finding that assignment of pretrial detainee to
segregated housing based on his security classification did not violate Due Process Clause); Yant
v. Scholack, No. 95-CV-9462, 1998 WL 157053, at *2 (S.D.N.Y. Apr. 3, 1998) (holding that the
Due Process Clause does not give pretrial detainee protectable liberty interest relating to brief
administrative confinement while undergoing intake and classification procedures); Benjamin v.
Kerik, 102 F. Supp. 2d 157, 171 (S.D.N.Y. 2000), aff’d sub nom. Benjamin v. Fraser, 264 F.3d
175 (2d Cir. 2001); cf. Calhoun v. New York State Division of Parole, 999 F.2d 647, 654 (2d

15

Cir. 1993) (five-day delay in releasing parole violator after maximum expiration date not a “harm
of a magnitude” to violate Eighth Amendment.).
Third, even if there was a punitive intent behind Plaintiff’s placement in segregated
housing, the Amended Complaint lacks any allegations that plausibly suggest the conditions of
Plaintiff’s restrictive confinement at Schenectady C.F. between his arrival on June 12 and his
court appearance on June 13, 2018, differed in any respect from the housing conditions Plaintiff
would have experienced following his admission to the facility as a new pretrial detainee.
Fourth, the Amended Complaint is devoid of any allegations that plausibly suggest
defendants D’Agostino and Bruce were personally involved in the decision to place Plaintiff in
punitive segregation following his return to DOCCS’ custody on June 14, 2018.
Accordingly, Plaintiff’s Eighth and Fourteenth Amendment claims against defendants
D’Agostino and Bruce based on his placement in punitive segregation at Schenectady County
C.F. are dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for failure to
state a claim upon which relief may be granted.
III.

CONCLUSION
Accordingly, it is hereby:
ORDERED, that the Amended Complaint is accepted for filing and is the operative

pleading; and it is further
ORDERED, that the following claims SURVIVE sua sponte review and require a
response: (1) Plaintiff’s Eighth Amendment claims against defendants Annucci, Morton, and
Colvin; and (2) Plaintiff’s Fourteenth Amendment due process claims against defendants
Annucci, Morton, and Colvin; and it is further
16

ORDERED, that all remaining Section 1983 claims are DISMISSED pursuant to 28
U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for failure to state a claim upon which relief
may be granted; and it is further
ORDERED, that the Clerk shall add Robert Morton, Dominic D’Agostino, and Timothy
Bruce to the docket as defendants and TERMINATE defendants D’Agostino and Bruce from
this action; and it is further
ORDERED, that the Clerk shall issue summonses and forward them, along with copies
of the Amended Complaint, to the United States Marshal for service upon the defendants
Annucci, Morton, and Colvin. The Clerk shall forward a copy of the summons and Amended
Complaint by mail to the Office of the New York State Attorney General, together with a copy of
this Decision and Order; and it is further
ORDERED, that a response to Plaintiff’s Amended Complaint be filed by defendants
Annucci, Morton, and Colvin, or their counsel, as provided for in the Federal Rules of Civil
Procedure; and it is further
ORDERED, that all pleadings, motions and other documents relating to this action must
bear the case number assigned to this action and be filed with the Clerk of the United States
District Court, Northern District of New York, 7th Floor, Federal Building, 100 S. Clinton St.,
Syracuse, New York 13261-7367. Plaintiff must comply with requests by the Clerk’s Office for
any documents that are necessary to maintain this action. All parties must comply with Local
Rule 7.1 of the Northern District of New York in filing motions; motions will be decided on
submitted papers, without oral argument, unless otherwise ordered by this Court. Plaintiff is also
required to promptly notify the Clerk’s Office and all parties or their counsel, in writing, of
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any change in his address; his failure to do so will result in the dismissal of this action; and
it is further
ORDERED, that the Clerk shall serve a copy of this Decision and Order on Plaintiff.
IT IS SO ORDERED.

DATED:

November 19, 2021
Albany, New York
LAWRENCE E. KAHN
United States District Judge

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