Israel v. Bradt et al
ORDER granting defendant's 6 Motion for Summary Judgment and dismissing the complaint. Signed by Hon. David G. Larimer on 1/9/17. (EMA)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DECISION AND ORDER
MARK BRADT, Superintendent Attica
Correctional Facility, et al.,
Plaintiff, Allen Israel, appearing pro se, commenced this action under 42 U.S.C. § 1983.
Plaintiff, an inmate in the custody of the New York State Department of Corrections and
Community Supervision (“DOCCS”), brought this action against a number of DOCCS
employees, alleging that they violated his rights under the United States Constitution in a number
On September 28, 2015, the Court sua sponte dismissed plaintiff’s claims against all the
defendants, except for his due process claim against defendant Michelle Artus. (Dkt. #3.) Artus
has now moved for summary judgment. (Dkt. #6).
The relevant facts are straightforward. In November 2012, plaintiff was given a random
urinalysis, and he tested positive for the drug Buprenorphine. As a result, he was charged with a
A Tier III disciplinary hearing was held on the charge in December 2012. Artus was the
hearing officer. She found defendant guilty of drug use. Plaintiff was sentenced to two months’
keeplock and loss of good time and privileges.
On administrative appeal, the disposition was affirmed. Plaintiff then filed an Article 78
proceeding in state court, challenging the administrative determination. Because DOCCS
indicated that it was unable to produce a hearing transcript, and since plaintiff had already served
his entire two-month sentence, the state court reversed the disciplinary disposition, ordered the
hearing record expunged, and directed that plaintiff’s good-time credits be restored. Artus Decl.
(Dkt. #6-3) Ex. 20.
Plaintiff then filed this civil rights suit. Alleging certain improprieties in connection with
his hearing, plaintiff alleges that his rights to both substantive and procedural due process have
As the Court of Appeals for the Second Circuit has recently explained, however, “to
maintain either claim, [plaintiff] must plausibly allege a protected liberty interest ... .” Baez v.
Pinker, __ Fed.Appx. __, 2016 WL 7177663, at *1 (2d Cir. Dec. 8, 2016) (citing Washington v.
Glucksberg, 521 U.S. 702, 721 (1997) (substantive due process); Board of Regents of State
Colleges v. Roth, 408 U.S. 564, 571-72 (1972) (procedural due process)). He has not done so.
To establish a constitutionally protected liberty interest triggering due process concerns,
plaintiff must show that he was subjected to an ““atypical and significant hardship ... in relation
to the ordinary incidents of prison life.” Sandin v. Connor, 515 U.S. 472, 484 (1995). In
determining whether that standard has been met, the court must consider both the duration and
the conditions of a prisoner’s confinement. O’Diah v. Artus, No. 10-CV-6705, 2013 WL
1681834, at *1 (W.D.N.Y. Apr. 17, 2013). “Although not the only factor to be considered, the
duration of a disciplinary keeplock confinement remains significant under Sandin, 515 U.S. at
484.” Chavis v. Chappius, No. 06-CV-543, 2015 WL 1472117, at *14 (W.D.N.Y. Mar. 31,
2015) (internal quote omitted).
In line with Second Circuit precedent, district courts within this circuit have repeatedly
held that sentences of the length imposed here–two months–do not, absent some unusually harsh
conditions, implicate a protected liberty interest. See, e.g., Vogelfang v. Capra, 889 F.Supp.2d
489, 511 (S.D.N.Y. 2012) (60 days of keeplock confinement after a hearing that was later found
to be defective “failed to demonstrate a liberty interest entitling [the plaintiff] to due process”);
Principio v. McGinnis, No. 05-CV-0856, 2007 WL 2344872, at *2 (W.D.N.Y. Aug. 15, 2007)
(60 days in “keeplock with loss of telephone, packages, recreation and conjugal visits” did not
constitute atypical sentence or unusual conditions that rose “above the Sandin threshold”); Sales
v. Barizone, 03 Civ. 6691, 2004 WL 2781752, at *7 (S.D.N.Y. Dec. 2, 2004) (two months’
confinement in the SHU cannot survive the Sandin test absent further allegations). See also
Williams v. Goord, 111 F. Supp. 2d 280, 289 (S.D.N.Y. 2000) (75 days in solitary confinement
“generally does not impose an atypical and significant hardship because it remains within the
normal range of prison custody).
In the case at bar, plaintiff alleges that while in keeplock, he was confined to his cell 23
hours a day, that he lost certain privileges (such as commissary, telephone and visitation
privileges), and that whenever he was allowed to leave his cell, he was placed in shackles.
Complaint (Dkt. #1) at 8, ¶ 30. There is no indication that those restrictions are anything other
than typical concomitants of keeplock, and they do not, in the context of plaintiff’s two-month
sentence, give rise to a protected liberty interest. See Jabot v. Correction Officer Minor, No. 13CV-1407, 2016 WL 5322113, at *9 (N.D.N.Y. July 15, 2016) (“While Plaintiff’s conditions of
confinement are certainly more restrictive than those in general population, they are insufficient
to implicate a liberty interest, even when coupled with Plaintiff’s 200 days confined to the
SHU”); Smart v. Goord, 441 F. Supp.2d 631, 640 (S.D.N.Y. 2006) (loss of phone, packages, and
commissary privileges does not give rise to a protected liberty interest).
This finding is enough, alone, to warrant granting defendant’s motion. I also note,
however, that plaintiff’s claims are meritless in any event.
Plaintiff alleges that at the hearing, he was denied certain evidence that he had requested,
relating to the handling and testing of urine specimens, including documents showing what
substances could cause a false positive result. Even assuming that such documents existed, I find
that defendant’s denial of plaintiff’s request did not implicate any federal constitutional concerns.
See Eleby v. Selsky, 682 F.Supp.2d 289, 292 (W.D.N.Y. 2010) (“prison inmates have no general
constitutional right to documents relating to drug testing procedures”).
Furthermore, plaintiff has not demonstrated any prejudice from the denial of these
documents. The record shows that plaintiff was permitted to cross-examine the relevant witness
about the methods and procedures used, and that he did not pursue that matter to any extent.
Plaintiff has simply failed to show how he was prejudiced by this ruling. He has not shown what
he would have done differently had he been given those documents, or how the outcome of the
hearing would likely have been different.
Plaintiff also alleges that the DOCCS officers and employees involved in his disciplinary
proceedings failed to follow proper procedures to establish the chain of custody of his urine
sample. While there is some case law indicating that “the due process clause requires a
disciplinary body to establish a reasonably reliable chain of custody of the urine sample,” Rivera
v. Wohlrab, 232 F.Supp.2d 117, 124 (S.D.N.Y. 2002), in the case at bar plaintiff has alleged, at
most, minor noncompliance with certain state-imposed regulatory procedures.
It is well established, however, that “it is federal constitutional standards, not state law or
regulations, that define the requirements of procedural due process.” Johnson v. Goord, 487
F.Supp.2d 377, 385 (S.D.N.Y. 2007) (citing Russell v. Coughlin, 910 F.2d 75, 78 n. 1 (2d Cir.
1990)), aff’d, 305 Fed.Appx. 815 (2d Cir. 2009). The matters raised by plaintiff here do not rise
to a constitutional level. The testimony and evidence at the hearing well documented how
plaintiff’s urine sample was handled and analyzed, and that evidence did not show that the results
of the drug test were untrustworthy, much less that they were so unreliable that plaintiff’s due
process rights were violated. There is simply no basis here for a due process claim.
Defendant’s motion for summary judgment (Dkt. #6) is granted, and the complaint is
IT IS SO ORDERED.
DAVID G. LARIMER
United States District Judge
Dated: Rochester, New York
January 9, 2017.
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