Abdur-Raheem v. Caffery et al
Filing
32
OPINION AND ORDER re: 18 MOTION to Dismiss the Complaint filed by T. Caffery, Albert Prack. For the foregoing reasons, Defendants' motion to dismiss the complaint is GRANTED. The Clerk of Court is directed to close the motion at docket number 18 and to close the case. SO ORDERED. (Signed by Judge J. Paul Oetken on 2/17/2015) Copies Mailed By Chambers. (ama)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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JALIL ABDUR-RAHEEM,
:
:
Plaintiff,
:
:
-v:
:
T. CAFFERY and ALBERT PRACK,
:
:
Defendants.
:
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13-CV-6315 (JPO)
OPINION AND ORDER
J. PAUL OETKEN, United States District Judge:
Jalil Abdur-Raheem (“Abdur-Raheem”), proceeding pro se while incarcerated at a
correctional facility in New York, alleges that Defendants Terry Caffery (“Caffery”) and Albert
Prack (“Prack”) (collectively, “Defendants”) deprived him of his constitutional rights in violation
of 42 U.S.C. § 1983. Specifically, Abdur-Raheem alleges violations of the Fourth, Eighth, and
Fourteenth Amendments. Defendants move to dismiss the complaint for failure to state a claim.
For the reasons that follow, Defendants’ motion is granted.
I.
Background
A.
Factual Background 1
In January 2011, Abdur-Raheem was a prisoner at New York State’s Green Haven
Correctional Facility (“Green Haven”), and worked as a porter in the Family Reunion Program
(“FRP”), where his duties included cleaning the FRP trailers. (Dkt. No. 1 (“Compl.”), Ex. A
(“N.Y.S. Decision”).) Defendant Caffery was a Tier III hearing officer at Green Haven.
1
The following facts, taken from the complaint and attached exhibits, are assumed true for the
purpose of resolving the motion to dismiss. Goonewardena v. New York, 475 F. Supp. 2d 310,
320 (S.D.N.Y. 2007).
1
(Compl. at 5.) Defendant Prack was the Director of Special Housing/Inmate Disciplinary
Program for the New York State Department of Corrections and Community Supervision
(“DOCCS”). (Id. Ex. B.)
On January 27, 2011, Abdur-Raheem cleaned the trailer where one of his own FRP visits
was to be held and brought a few personal items into the trailer. (Compl. at 5; N.Y.S. Decision.)
Soon thereafter, a corrections officer who worked in the FRP office noticed that two cartridges of
film were missing from the office, and, after a search, discovered one cartridge hidden between
the mattresses of the bed in the trailer in which Abdur-Raheem was to have his FRP visit.
(N.Y.S. Decision.) Abdur-Raheem was immediately placed in the Special Housing Unit, or
“SHU.” (Compl. at 5.)
Abdur-Raheem was charged in a prison misbehavior report with smuggling, stealing, and
violating FRP guidelines. (N.Y.S. Decision.) On February 14, 2011, he was found guilty of the
charges following a Tier III disciplinary hearing before Defendant Caffery. (Id.; Compl. at 5;
Compl. Ex. B.) Caffery sentenced Abdur-Raheem to six months in the S.H.U. The punishment
included loss of packages, commissary, and phone privileges for the full six-month period.
(Compl. at 5.) It appears from the complaint that Abdur-Raheem may have been released early
on April 4, 2011. (Id.) In any event, Caffery’s determination was affirmed on administrative
appeal. (N.Y.S. Decision.)
Abdur-Raheem subsequently initiated a proceeding in New York state court pursuant to
CPLR Article 78, contending that his right to call witnesses had been infringed at the Tier III
hearing when Caffery failed to make a personal inquiry concerning the reason Abdur-Raheem’s
witness refused to testify. (N.Y.S. Decision.) The witness, a fellow inmate, was the other porter
in the FRP program who had access to the FRP trailers. (Id.) He had initially agreed to testify,
2
but later refused. (Id.) At the hearing, Caffery informed Abdur-Raheem of the inmate’s refusal
to testify and indicated that two officers had spoken to the inmate about his refusal. (Id.) In
addition, Caffery gave Abdur-Raheem a copy of the inmate refusal form, which indicated that
the requested witness did not “have knowledge of any photos” and “did not want to be
involve[d].” (Id.)
On September 13, 2012, the Appellate Division, Third Department annulled the
disciplinary determination. (Id.) 2 The court held that under New York law, Caffery was
required to conduct a “personal inquiry” into the witness’s reason for refusing to testify “unless a
genuine reason for the refusal [was] apparent from the record and [Caffery] made a sufficient
inquiry into the facts surrounding the refusal to ascertain its authenticity.” (Id.) The court held,
first, that the witness’s desire not to be involved, as indicated on the inmate refusal form, was not
a legitimate basis for an inmate’s refusal to testify, and second, that “[e]ven if the refusal form
were construed to contain a justifiable reason based upon a lack of knowledge,” there was no
evidence that Caffery had spoken with the officers who obtained the refusal form to establish this
reason as authentic. (Id.) Therefore, Caffery’s obligation to conduct a personal inquiry was not
excused by the refusal form. (Id.) The court concluded that Abdur-Raheem “was denied his
regulatory right to call witnesses,” and the matter was “remitted for a new hearing.” (Id.)
On September 20, 2012, Prack sent a letter to Abdur-Raheem advising him “on behalf of
the Commissioner” that his prison disciplinary determination had been “reviewed and
administratively reversed,” and that rehearing was “not warranted.” (Compl. Ex. B.)
Abdur-Raheem sues Caffery and Prack in their official and individual capacities under 42
U.S.C. § 1983. He alleges that Caffery violated his Fourth, Eighth, and Fourteenth Amendment
2
Abdur-Raheem v. Prack, 98 A.D.3d 1152 (N.Y. App. Div. 3d Dep’t 2012).
3
rights when he failed to personally inquire as to why the witness refused to testify, and that Prack
“unconstitutionally left [him] confined to S.H.U. from Jan[uary] 27, 2011, until April 4, 2011.”
(Compl. at 5.) He seeks damages of $150 for each day in SHU, $.32 per hour for the wages he
lost as a result of being held in SHU, and punitive damages of $2,500. (Id. at 5-6.) 3 Caffery and
Prack move to dismiss the complaint for failure to state a claim.
B.
Procedural History
The complaint was filed on July 8, 2013. (Dkt. No. 1.) On September 24, 2013, the
Court sua sponte dismissed Abdur-Raheem’s official-capacity claims against the Defendants on
the ground that, as state agents, Caffery and Prack have Eleventh Amendment immunity from
suit for damages in their official capacities. 4 (Dkt. No. 7.) On March 12, 2014, Defendants
moved to dismiss the complaint. (Dkt. No. 18.) Abdur-Raheem subsequently received two
extensions of time to respond to the Motion to Dismiss (Dkt. Nos. 22 & 25), after which he
applied for the appointment of counsel (Dkt. No. 29). The Court denied his application, but sua
sponte granted him a third extension of time within which to respond to the Motion to Dismiss,
to December 20, 2014. (Dkt. No. 30.) Abdur-Raheem failed to meet this deadline, and the Court
warned him that the Motion would be considered unopposed if he did not deliver his opposition
to prison authorities by February 1, 2015. (Dkt. No. 31.) The Motion to Dismiss remains
unopposed.
II.
Legal Standard
3
Abdur-Raheem’s favorable Article 78 determination does not foreclose this subsequent § 1983
action for damages, since damages are unavailable to compensate a party in an Article 78
proceeding for civil rights violations. Davidson v. Capuano, 792 F.2d 275, 278-80 (2d Cir.
1986).
4
Accordingly, this Opinion addresses only the claims against the Defendants in their individual
capacities.
4
On a motion to dismiss pursuant to Rule 12(b)(6), a court must “accept all allegations in
the complaint as true and draw all inferences in the non-moving party’s favor.” LaFaro v. N.Y.
Cardiothoracic Grp., PLLC, 570 F.3d 471, 475 (2d Cir. 2009) (internal quotation marks
omitted). To survive a motion to dismiss, a complaint must plead “enough facts to state a claim
to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A
claim has facial plausibility when the pleaded factual content allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). “This standard is not akin to a probability requirement, but it asks for
more than a sheer possibility that a defendant has acted unlawfully.” Vaughn v. Air Line Pilots
Ass’n, Int’l, 604 F.3d 703, 709 (2d Cir. 2010) (quoting Iqbal, 556 U.S. at 678 (internal quotation
marks omitted)).
In determining whether a plaintiff has pleaded facts sufficient to survive a motion to
dismiss, a court will not consider mere conclusory allegations that lack a factual basis. Hayden
v. Paterson, 594 F.3d 150, 160-61 (2d Cir. 2010). A plaintiff’s complaint “must at a minimum
assert nonconclusory factual matter sufficient to nudge its claims across the line from
conceivable to plausible to proceed.” EEOC v. Port Auth. of N.Y. & N.J., 768 F.3d 247, 254 (2d
Cir. 2014) (quoting Iqbal, 556 U.S. at 680) (alterations and internal quotation marks omitted).
In assessing the sufficiency of the complaint, a court may consider “any written
instrument attached to it as an exhibit, materials incorporated in it by reference, and documents
that, although not incorporated by reference, are integral to the complaint.” Sira v. Morton, 380
F.3d 57, 67 (2d Cir. 2004) (citations and internal quotation marks omitted). “Integral”
documents are those “either in plaintiffs’ possession or of which plaintiffs had knowledge and
relied on in bringing suit.” Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002)
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(quoting Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir.1993)). In order for a
document to be “integral,” however, a plaintiff must actually have relied on its terms and effect
in drafting the complaint; mere possession or notice is not enough. Id.
Finally, Abdur-Raheem’s pro se complaint is subject to more lenient standards than a
complaint filed by a represented party. “A document filed pro se is to be liberally construed, and
a pro se complaint, however inartfully pleaded, must be held to less stringent standards than
formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal
quotation marks omitted); see also Fed. Rule Civ. P. 8(e) (“Pleadings must be construed so as to
do justice.”).
III.
Discussion
To prevail on a claim under 42 U.S.C. § 1983, a plaintiff must “‘show that [an] official,
acting under color of state law, caused the deprivation of a federal right.’” Coon v. Town of
Springfield, Vt., 404 F.3d 683, 686 (2d Cir. 2005) (quoting Graham, 473 U.S. at 166 (1985)).
There is no dispute here that Caffery and Prack, employees of the DOCCS, were acting under
color of state law. The parties dispute the second element, that is, whether Abdur-Raheem has
stated a plausible claim that Caffery or Prack deprived him of a right guaranteed by the United
States Constitution. Abdur-Raheem alleges violations of his Fourth, Eighth, and Fourteenth
Amendment rights.
A.
Fourth Amendment Claim Against Caffery
Abdur-Raheem merely lists “4th Amend[ment] violations” in the complaint as part of the
list of claims against Caffery, without elaboration. (Compl. at 5.) He states no facts from which
6
the Court can infer the Fourth Amendment violations to which he refers. Accordingly, this claim
is dismissed. 5
B.
Eighth Amendment Claim Against Caffery
Abdur-Raheem alleges that his Eighth Amendment rights were violated when he was
placed in the SHU. (Id.) “In order to establish a violation of his Eighth Amendment rights, an
inmate must show (1) a deprivation that is ‘objectively, sufficiently serious’ that he was denied
‘the minimal civilized measure of life’s necessities,’ and (2) a ‘sufficiently culpable state of
mind’ on the part of the defendant official, such as deliberate indifference to inmate health or
safety.” Gaston v. Coughlin, 249 F.3d 156, 164 (2d Cir. 2001) (quoting Farmer v. Brennan, 511
U.S. 825, 834 (1994)). A prison official has a culpable state of mind if he “participated directly
in the alleged event, . . . learned of the inmate’s complaint and failed to remedy it, . . . created or
permitted a policy that harmed the inmate, or acted with gross negligence in managing
subordinates.” Id.
Abdur-Raheem has not plausibly pleaded either of these elements. As to his detention in
the SHU, he states only that he lost his privileges with respect to receiving packages, the
commissary, and phone calls. Even assuming that Abdur-Raheem’s SHU confinement lasted for
the full six-month period, these allegations are not sufficient to give rise to an Eighth
Amendment violation. See, e.g., Dixon v. Goord, 224 F. Supp. 2d 739, 748-49 (S.D.N.Y. 2002)
5
The Fourth Amendment states:
The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but
upon probable cause, supported by oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized.
7
(holding that “allegations of having been cut off from the prison population, a computer
program, religious services, legal research, medical showers and personal property, as well as
limits on food access, and other normal incidents of SHU confinement,” which lasted ten
months, were “not violations of the Eighth Amendment”). And he makes no allegation as to
Caffery’s culpable state of mind in sentencing him to six months in the SHU. Accordingly,
Abdur-Raheem’s Eighth Amendment claim is dismissed. 6
C.
Fourteenth Amendment Claim against Caffery
Abdur-Raheem’s Fourteenth Amendment claim against Caffery is a procedural due
process claim. To state such a claim, Abdur-Raheem must allege that he has a protected liberty
interest and that he was deprived of sufficient process to protect that interest. See Sandin v.
Conner, 515 U.S. 472, 484 (1995). Abdur-Raheem argues that Caffery deprived him of due
process when he sentenced him to the SHU without inquiring into the requested witness’s reason
for refusing to testify at the Tier III hearing. (Compl. at 5.)
Liberty or Property Interest: A prisoner’s liberty interest is implicated by SHU
confinement only if the confinement “imposes [an] atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life.” Id. Factors relevant to determining
whether the plaintiff endured an “atypical and significant hardship” include “the extent to which
the conditions of the disciplinary segregation differ from other routine prison conditions” and
6
The Court notes that there is no evidence that Abdur-Raheem exhausted his Eighth Amendment
claim as required to bring a prison condition claim under § 1983. See 42 U.S.C. § 1997e(a);
Baskerville v. Blot, 224 F. Supp. 2d 723, 729 (S.D.N.Y. 2002) (detailing New York state’s threestep inmate grievance process available to prisoners to exhaust their administrative remedies).
The defense of failure to exhaust, however, is an affirmative defense; a defendant must prove its
factual basis. Jones v. Bock, 549 U.S. 199, 216 (2007). Caffery has made no effort to do so
here.
8
“the duration of the disciplinary segregation imposed compared to discretionary confinement.”
Wright v. Coughlin, 132 F.3d 133, 136 (2d Cir. 1998).
“Although the Second Circuit has explicitly declined to create a ‘bright line rule that a
certain period of SHU confinement automatically fails to implicate due process rights,’ it has
established ‘guidelines for use by district courts in determining whether a prisoner’s liberty
interest was infringed.’” Zappulla v. Fischer, No. 11 Civ. 6733 (JMF), 2013 WL 1387033, at *6
(S.D.N.Y. Apr. 5, 2013) (quoting Palmer v. Richards, 364 F.3d 60, 64 (2d Cir. 2004)). For
example, “[w]here the plaintiff was confined for an intermediate duration—between 101 and 305
days—development of a detailed record of the conditions of the confinement relative to ordinary
prison conditions is required.” Palmer, 364 F.3d at 64-65 (internal quotation marks omitted).
Confinement of 305 days or more has been deemed to be an “atypical and a significant
hardship.” Bunting v. Nagy, 452 F. Supp. 2d 447, 456 (S.D.N.Y. 2006) (quoting Colon v.
Howard, 215 F.3d 227, 231 (2d Cir. 2000)). In contrast, typical punitive segregation conditions
imposed for 101 days or fewer “generally do not constitute ‘atypical’ conditions of
confinement.” Id. (quoting Sealey v. Giltner, 197 F.3d 578, 589 (2d Cir. 1999)). However, “[i]n
the absence of a detailed factual record, [the Second Circuit has] affirmed dismissal of due
process claims only in cases where the period of time spent in [punitive segregation] was
exceedingly short—less than . . . 30 days . . .—and there was no indication that the plaintiff
endured unusual . . . conditions.” Palmer, 364 F.3d at 65–66.
It is unclear from the complaint whether Abdur-Raheem spent 67 days or six months (180
days) in the SHU. Either way, he spent more than 30 days in the SHU, and therefore
development of a detailed record of the SHU conditions he was subject to is advisable before the
Court will dismiss this claim for failure to plead a protected liberty interest. The factual record
9
before the Court is far from detailed; Abdur-Raheem states only that the SHU sanction “included
loss of packages, commissary, [and] phone privileges.” (Compl. at 5.) The Court will therefore
not dismiss Abdur-Raheem’s procedural due process claim on this ground. Rather, the Court
assumes without deciding that Abdur-Raheem’s SHU confinement implicates a protected liberty
interest, and asks whether he was given sufficient process.
Process: “A prisoner may not properly be deprived of a cognizable liberty interest
without due process of law.” Gaston, 249 F.3d at 163. Due process requires that a prisoner be
provided, at minimum, with “advance written warning of the charges against him, the
opportunity to call witnesses, and a written final decision on the hearing describing how the state
reached its determination.” Odom v. Kerns, No. 99 Civ. 10668 (KMK)(MHD), 2008 WL
2463890, at *9 (S.D.N.Y. June 18, 2008) (citing Wolff v. McDonnell, 418 U.S. 539, 563-67
(1974)); see also Ponte v. Real, 471 U.S. 491, 495 (1985) (“Chief among the due process minima
outlined in Wolff was the right of an inmate to call and present witnesses and documentary
evidence in his defense before the disciplinary board.”). Abdur-Raheem challenges only the
second of these requirements; he alleges that his right to call witnesses was infringed when
Caffery failed to make a personal inquiry into Abdur-Raheem’s witness’s refusal to testify.
(Compl. at 5.)
A prisoner does not have an absolute right to call witnesses on his behalf in a prison
disciplinary proceeding. An “unrestricted right to call witnesses from the prison population
carries obvious potential for disruption and for interference with the swift punishment that in
individual cases may be essential to carrying out the correctional program of the institution.”
Wolff, 418 U.S. at 566. Accordingly, “[w]e should not be too ready to exercise oversight and put
aside the judgment of prison administrators. . . . [W]e must balance the inmate’s interest . . .
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against the needs of the prison, and some amount of flexibility and accommodation is required.”
Id. Some legitimate reasons for refusing a prisoner’s request to call a witness include
“irrelevance, lack of necessity, [and] the hazards presented in individual cases.” Odom, 2008
WL 2463890, at *9 (quoting Wolff, 418 U.S. at 566) (internal quotation marks omitted).
“Clearly, if a witness will not testify if called, it cannot be a ‘necessity’ to call him.
[Therefore,] if a prison official . . . reasonably concludes that it would be futile to call a witness
to testify, his refusal to do so will not constitute a violation of the prisoner’s constitutional
rights.” Silva v. Casey, 992 F.2d 20, 22 (2d Cir. 1993). Courts in this and neighboring districts
have consistently held that a prison hearing officer’s failure to call a fellow inmate who refuses
to testify does not violate due process. See Odom, 2008 WL 2463890, at *10 (“A witness’s
refusal to testify is a rational reason for denying Plaintiff’s request to call witnesses.”); Jamison
v. Fischer, No. 11 Civ. 4697 (RJS), 2013 WL 5231457, at *3 & n.4 (S.D.N.Y. July 11, 2013)
(holding that a hearing officer could have reasonably concluded that it would be futile to call
witnesses where those witnesses submitted witness refusal sheets, and that therefore the fact that
these witnesses were not made to testify did not deprive the plaintiff of due process); Turner v.
Grant, No. 98 Civ. 706A, 2000 WL 362032, at *5 (W.D.N.Y. Mar. 29, 2000) (holding that a
hearing officer did not violate the plaintiff’s due process rights in failing to call a witness who
refused to testify); Merced v. Moylan, No. 9:05 Civ. 1426 (FJS/RFT), 2007 WL 3171800, at *9
(N.D.N.Y. Oct. 29, 2007) (“A failure to summon the testimony of a witness who has refused to
testify, in the absence of evidence that the refusal was linked to intimidation on the part of prison
officials, does not violate due process because calling a witness who refuses to speak upon
questioning would be futile.”).
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Moreover, “[t]here is no indication in Second Circuit or Supreme Court case law that a
hearing officer must make an independent evaluation of the basis for the refusal to testify.”
Greene v. Coughlin, No. 93 Civ. 2805 (DLC), 1995 WL 60020, at *14 (S.D.N.Y. Feb. 10, 1995)
(holding that a Tier III hearing officer does not violate a prisoner’s due process rights when he
fails to investigate the reasons for an inmate refusing to testify); Jamison, 2013 WL 5231457, at
*3 (same); Dumpson v. Rourke, No. 96 Civ. 621 (RSP), 1997 WL 610652, at *1 (N.D.N.Y. Sept.
28, 2006) (same). While failure to make such an independent evaluation violates state
regulations, it does not violate the complaining prisoner’s federal constitutional rights. See
Martinez v. Minogue, No. 9:06 Civ. 546, 2008 WL 4241746, at *5-6 (N.D.N.Y. Sept. 11, 2008).
To be sure, a prison official who refuses to call a requested witness has a constitutional
obligation to explain to the prisoner-defendant why the witness was not allowed to testify.
Ponte, 471 U.S. at 497; Russell v. Selsky, 35 F.3d 55, 58 (2d Cir. 1994). The reasons need not be
in writing, and may be provided at the disciplinary hearing itself or by presenting testimony in
court when there is a later constitutional challenge to the hearing. Ponte, 471 U.S. at 497.
Under this precedent, Caffery did not violate Abdur-Raheem’s due process rights when
he proceeded without the testimony of Abdur-Raheem’s proposed witness. That witness had
indicated, by way of an inmate refusal form, that he would not testify. Further, while Caffery
may have had an obligation under New York law to further investigate the inmate’s refusal to
testify, he did not have an obligation under the Due Process Clause to do so. Rather, he was
constitutionally required only to explain to Abdur-Raheem why the witness was not called.
Caffery fulfilled this obligation when he gave Abdur-Raheem a copy of the inmate refusal form
at the Tier III hearing, which indicated that the inmate had refused to testify because he did not
12
have knowledge of the event and did not want to be involved. Accordingly, Abdur-Raheem’s
Fourteenth Amendment procedural due process claim against Caffery is dismissed.
D.
Claim Against Prack
The complaint also names Prack, who was the Director of the DOCCS Special
Housing/Inmate Disciplinary Program when Abdur-Raheem was confined in the SHU. (Compl.
at 5; id. Ex. B.) The complaint alleges only that Prack left Abdur-Raheem “unconstitutionally . .
. confined to S.H.U. from Jan[uary] 27, 2011, until April 4, 2011.” (Id. at 5.) 7 Abdur-Raheem’s
claim against Prack is best read as stemming from his claims against Caffery: because Caffery
unconstitutionally sentenced him to the SHU, Abdur-Raheem alleges, Prack’s keeping him there
was unconstitutional as well. Accordingly, because Abdur-Raheem has failed to state a claim
against Caffery, he has failed to state a claim against Prack. 8
7
Although not pleaded in the complaint, the Defendants state that Prack was responsible for
affirming Caffery’s decision on administrative appeal, before it was reversed in the Article 78
proceeding. (Dkt. No. 20 at 2.) This is perhaps what Abdur-Raheem intends by his allegation
that Prack left him “unconstitutionally . . . confined to S.H.U.” In any event, whether Prack
passively left him in the SHU or affirmed Caffery’s holding against him on administrative
appeal, Abdur-Raheem has failed to state a claim against Prack.
8
Abdur-Raheem’s claim against Prack could also be liberally construed as faulting Prack for
placing Abdur-Raheem in the SHU on January 27, 2011, 18 days before Abdur-Raheem was
given any kind of hearing. This claim fails. Absent any indication that Abdur-Raheem endured
unusual prison conditions, 18 days in the SHU is insufficient to allege interference with a liberty
interest such that the protections of procedural due process apply. See Palmer, 364 F.3d at 6566; see also Arce v. Walker, 139 F.3d 329, 335-37 (2d Cir. 1998) (18 days in SHU).
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IV.
Conclusion
For the foregoing reasons, Defendants’ motion to dismiss the complaint is GRANTED.
The Clerk of Court is directed to close the motion at docket number 18 and to close the case.
SO ORDERED.
________________________________
J. PAUL OETKEN
United States District Judge
Dated: February 17, 2015
New York, New York
A copy of this Opinion and Order was mailed to the pro se party.
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