Hart et al v. Artus et al
DECISION AND ORDER granting in part and denying in part 33 Motion to Amend or Correct; denying 34 Motion to Strike. Defendants motion to strike (ECF No. 34) is denied. Defendants motion to dismiss (ECF No. 33) is granted in part, and any proce dural due process claim that accrued prior to December 12, 2013 is dismissed. Otherwise, Defendants motion to dismiss is denied. Signed by Hon. Charles J. Siragusa on 7/15/21. Copies of this NEF mailed to pro se plaintiff Hart at Wende and pro se plaintiff Ryan at Midstate.(KAP)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
KEITH HART and SEAN RYAN,
DECISION and ORDER
DALE ARTUS, Superintendent of
Attica Correctional Facility, STUART
ECKARD, J. DONOHUE, Offender
Rehabilitation Coordinator of Attica
Correctional Facility, ANTHONY ANNUCCI,
Acting Commissioner of the NYSDOCCS,
JOSEPH BELLNIER, Deputy Commissioner
of the NYSDOCCS, and DON VENETTOZZI,
Director of Special Housing and Inmate
Discipline of the NYSDOCCS, all individually
and in their official capacities,
Plaintiffs are prison inmates in the custody of the New York State Department of
Corrections and Community Supervision (“DOCCS”) who bring this action under 42
U.S.C. § 1983 to challenge the constitutionality of their continued long-term confinement
in “Central Office Administrative Segregation” (“Central Office Ad Seg”). The Complaint
contends that Plaintiffs and other Central Office Ad Seg inmates are kept indefinitely in
the Special Housing Unit (“SHU”) with no realistic chance of release, resulting in violations
of their federal constitutional rights to due process and humane living conditions. Now
before the Court are two applications by Defendants: A motion (ECF No. 33) to partially
dismiss the Complaint pursuant to Fed. R. Civ. P. 12(b)(6); and, a motion (ECF No. 34)
to strike affidavits filed by Plaintiffs in opposition to the motion to dismiss. For the reasons
discussed below, the motion to strike is denied and the motion to dismiss is granted in
part and denied in part.
Plaintiffs Keith Hart (“Hart”) and Sean Ryan (“Ryan”) have each been in the
custody of the New York State Department of Corrections and Community Supervision
(“DOCCS”) for several decades. 1 Both were initially placed in DOCCS custody after being
convicted of separate and unrelated murders and robberies. Ryan subsequently was
convicted of an additional murder (as well as arson) while in DOCCS custody, after he
killed a co-defendant who had testified against him at trial. 2 Ryan was also convicted of
additional criminal conduct while in DOCCS custody, including an assault on DOCCS
staff. 3 Hart is presently serving an aggregate sentence of 42 years to life, while Ryan is
serving an aggregate sentence of 70 years to life. 4
Hart and Ryan have each been involved in several attempted or completed
Ryan originally entered DOCCS’ custody in 1978, following his conviction for murder and robbery.
According to a decision of the New York State Supreme Court, Appellate Division Third Department,
while incarcerated Ryan was also convicted or murder and arson, after killing another inmate and setting
the inmate’s cell on fire. See, Matter of Selsky, 2008 NY Slip Op 01880 [49 A.D.3d 926] March 6, 2008
(Denying Ryan’s Article 78 Proceeding challenging his placement in administrative segregation). Hart
has been in DOCCS custody since 1981, after being convicted of multiple counts of robbery and murder.
Prior to the events leading to this lawsuit, Hart escaped from prison once, and attempted to do so on
another occasion. See, People v. Hart, 93 N.Y.2d 825, 826, 710 N.E.2d 263, 264 (1999) (“In 1981,
defendant was convicted of two counts of murder, two counts of robbery in the first degree and one count
of robbery in the second degree. He was sentenced to concurrent terms of 25 years to life for the murder
convictions, followed by one consecutive 10–to–20–year sentence for robbery in the first degree. In 1983,
while serving the foregoing sentence, defendant escaped from the Elmira Correctional Facility and was
subsequently convicted of escape in the first degree and sentenced to a consecutive term of 2 to 4 years.
In 1988, defendant was convicted of attempted escape in the first degree and was sentenced to another
consecutive term of 1 ½ to 3 years.”).
2 See, Ryan v, Selsky, 49 A.D.3d 926, (3d Dept. 2008).
4 These aggregate sentences include the sentences that were imposed following Hart’s and Ryan’s
criminal convictions for the escapes and attempted escapes discussed herein.
escapes from custody. In 1979, Ryan escaped from the Rikers Island. 5 In 1983, Hart
escaped from Elmira Correctional Facility (“Elmira”) by cutting through window bars. In
1988, Hart again attempted an escape, this time from Green Haven Correctional Facility
(“Green Haven”), by partially sawing through the bars of his cell window, while possessing
ropes, hacksaw blades, a grappling hook, a flashlight, duct tape and travel directions. 6
Finally, in November 1994, both Ryan and Hart, along with two other inmates, escaped
from Shawangunk Correctional Facility (“Shawankgunk”). After each completed escape,
Plaintiffs were quickly re-captured.
Following the 1994 escape from Shawangunk, both Ryan and Hart served lengthy
administrative disciplinary sentences for the escape in the SHU. Specifically, Hart served
a 15-year SHU sentence, while Ryan served an 11 ½-year SHU sentence. The general
conditions of such confinement were evidently typical of SHU confinement in New York
State prisons, in which
the prisoner is[ ] placed in a solitary confinement cell, kept in his cell for 23
hours a day, permitted to exercise in the prison yard for one hour a day,
limited to two showers a week, and denied various privileges available to
general population prisoners, such as the opportunity to work and obtain
out-of-cell schooling. Visitors are permitted, but the frequency and duration
is less than in general population. The number of books allowed in the cell
is also limited.
Vance v. State of New York Dep't of Corr., No. 918CV0748MADATB, 2018 WL 6047828,
at *5 (N.D.N.Y. Nov. 19, 2018) (quoting Palmer v. Richards, 364 F.3d 60, 66 n.3 (2d Cir.
2004, with internal quotation marks and alterations omitted).
See, https://www.nytimes.com/1979/06/12/archives/prisoner-convicted-in-1977-east-side-murder-fleesjail-on-rikers.html; see also, Ryan v. Selsky, 49 A.D.3d 926 (3d Dept. 2008) (Mentioning that Ryan had
been convicted of “two counts of escape involving separate facilities,” apparently referring to Rikers Island
and, later, Shawangunk Correctional Facility).
6 ECF No. 31.
emphasize in this action that SHU confinement also involves other deprivations such as
lack of access to religious services; lack of adequate access to law library services; lack
of rehabilitative programs; lack of privacy when discussing religious and medical matters;
meals that are unappetizing and/or nutritionally inadequate; subpar medical care; and
confinement in close proximity to mentally-ill prisoners7 serving disciplinary sentences
who generate constant deafening noise and sickening odors. 8
After Plaintiffs’ disciplinary SHU sentences were completed, DOCCS Central
Office determined that Plaintiffs should remain in the SHU, pursuant to DOCCS’ Central
Office Ad Seg policy. In that regard, while Central Office Ad Seg is characterized by
DOCCS as a non-punitive type of confinement, it involves placement of inmates into SHU
solitary-confinement cells alongside inmates who are serving disciplinary sentences in
SHU. For the most part, conditions of confinement for Central Office Ad Seg inmates in
SHU are the same as those for inmates serving disciplinary sentences in SHU, though
inmates serving disciplinary sentences typically remain in SHU for much shorter periods.
Inmates serving disciplinary sentences in SHU also have a definite date upon which their
SHU sentences will end, whereas the term of SHU confinement for Central Office Ad Seg
inmates is open-ended. Additionally, Plaintiffs allege that inmates serving disciplinary
sentences in SHU have some additional privileges that Ad Seg inmates do not have, such
as access to the commissary and the use of computer tablets for legal research. 9
According to Plaintiffs, “the Central Office Ad Seg recommendation is usually
written by a member of the Inspector General’s Office and [ ] will allege that the prisoner
The Complaint refers to Attica’s SHU as “a psychiatric ward.” Complaint at ¶ 95.
Complaint (ECF No. 1) at pp. 4-26.
9 Complaint at ¶ ¶ 40-41, 117-119.
escaped previously [or] committed an act of violence or some other form of misconduct
considered serious” enough that they need to be isolated from inmates and staff. 10 The
general procedure involved in placing and maintaining an inmate in Central Office Ad Seg
was recently explained by the U.S. Court of Appeals for the Second Circuit as follows:
In the DOCCS system, there are two relevant reasons for prison
administrators to send an inmate to the SHU—Disciplinary Segregation and
Administrative Segregation (“Ad Seg”). Disciplinary Segregation, as its
name suggests, is designed to discipline an inmate found guilty of a “Tier
III” violation, the most serious of three infraction levels in the DOCCS
system. N.Y. Comp. Codes R. & Regs. tit. 7, §§ 270.2, 270.3(a)(3), 301.2.
A Disciplinary Segregation term lasts “for a designated period of time as
specified by the hearing officer.” Id. § 301.2(a). Once that time elapses, the
statute does not empower DOCCS to punish the inmate doubly for the same
infraction by imposing further Disciplinary Segregation. See id.
Ad Seg serves a different purpose. As relevant here, Ad Seg removes an
inmate from the general population when he “pose[s] a threat to the safety
and security of the [prison] facility.” Id. § 301.4(b). Given the importance of
that purpose, Ad Seg is flexible and accords DOCCS officials substantial
discretion in deciding whether to impose an Ad Seg term. Ad Seg terms are
open-ended and do not require that DOCCS predetermine when it will
release an inmate—“[a]t any time when deemed appropriate [by DOCCS],
an inmate may be evaluated and recommended for return to general
population.” Id. § 301.4(e)
There is, however, a constitutional ceiling on that flexibility: To ensure that
a state prison facility does not use Ad Seg as a pretext to commit an inmate
to the SHU indefinitely, the Due Process Clause of the Fourteenth
Amendment mandates that prison officials periodically review whether an
inmate continues to pose a threat to the facility. Hewitt v. Helms, 459 U.S.
460, 477 n.9, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983), abrogated in part on
other grounds by Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132
L.Ed.2d 418 (1995). New York effectuates that mandate by providing an
inmate with an initial hearing within fourteen days of his confinement in Ad
Seg, see N.Y. Comp. Codes R. & Regs. tit. 7, §§ 254.6, 301.4(a), and with
reviews conducted pursuant to section 301.4(d) of the DOCCS regulatory
Complaint at ¶ 19.
code (“section 301.4(d) reviews”) every sixty days until he is returned to the
general population, see id. § 301.4(d).
Section 301.4(d) review . . . is a three-step process. First, a committee
commonly referred to as the “Facility Committee,” consisting of “a
representative of the facility executive staff, a security supervisor, and a
member of the guidance and counseling staff,” convenes to review the
inmate’s institutional record. Id. § 301.4(d)(1). The Facility Committee
prepares and submits to the superintendent of the prison a report outlining
“(i) reasons why the inmate was initially determined to be appropriate for
[Ad Seg]; (ii) information on the inmate’s subsequent behavior and attitude;
and (iii) any other factors that [the committee] believe[s] may favor retaining
the inmate in or releasing the inmate from [Ad Seg]” and recommending
whether to continue the inmate’s SHU term. Id.
Second, the superintendent forwards the Facility Committee’s report and
any written response that the inmate submits to a “Central Office
Committee” located at DOCCS headquarters in Albany, New York, for
“Central Office Review.” The Central Office Committee, “consisting of a
representative from the office of facility operations, a member of [the
DOCCS] inspector general’s staff, and an attorney from the office of
counsel,” reviews the Facility Committee’s report, develops its own
recommendation whether the inmate continues to pose a safety threat to
the facility, and forwards the paperwork to the deputy commissioner of
DOCCS. Id. § 301.4(d)(3).
Third, the deputy commissioner reviews the two committees’
recommendations, as well as the inmate’s written statement when
applicable, and decides whether to continue the inmate in Ad Seg. Id. Once
the deputy commissioner makes a final decision, he or she notifies the
superintendent of the inmate’s prison facility, who provides written notice to
the inmate of the decision and its “reason(s),” and a statement notifying the
inmate of his right to submit a written statement in the next section 301.4(d)
review. Id. § 301.4(d)(4).
Proctor v. LeClaire, 846 F.3d 597, 601–02 (2d Cir. 2017) (“Proctor”) 11 (footnote omitted). 12
11 Incidentally, Patrick Proctor, the Plaintiff-Appellant in Proctor v. LeClaire, was one of the four inmates
who, along with Hart and Ryan, escaped from Shawangunk in 199. See, id. at 602.
12 Notwithstanding the deliberative process described in the foregoing paragraphs, in Proctor the Second
Circuit discussed evidence adduced by the Plaintiff-Appellant which had raised triable issues of fact as to
Plaintiffs Hart and Ryan, as a consequence both of their disciplinary sentences
and their subsequent placement in Central Office Ad Seg, have remained continuously in
SHU since 1994. Ryan’s term of Central Office Ad Seg confinement began in or about
April 2006, 13 while Hart’s term began on October 29, 2009, 14 meaning that they have now
been in Ad Seg for 15 years and 11 years, respectively.
On December 12, 2016, the two Plaintiffs commenced this action by filing a
Complaint (ECF No. 1) that, again, generally contends that Central Office Ad Seg inmates
are being kept in SHU permanently, due to DOCCS officials failure to provide them the
required due process, and that such long-term isolation in SHU in term results in a variety
of constitutional violations based on the living conditions in SHU. A central theme of the
Complaint is that it is physically, spiritually and emotionally harmful, and contrary to any
legitimate penological justification, to house Administrative Ad Seg inmates in the punitive
environment of the SHU for long periods. The other main theme is that DOCCS officials
do not actually follow the Central Office Ad Seg procedural protections discussed earlier,
but, instead, conduct sham proceedings designed to keep Central Office Ad Seg inmates
in SHU indefinitely. More specifically, the Complaint purports to assert six (6) separate
causes of action.
The First Cause of Action alleges that the conditions of confinement in SHU
prevent Plaintiffs from practicing their religion (Catholicism), in violation of the First
Amendment and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”).
whether DOCCS was providing constitutionally meaningful review of inmates’ placement in Central Office
Ad Seg. Id., 846 F.3d at 612-614. Such evidence included statements by DOCCS officials indicating that
“the standard DOCCS practice is that an inmate ‘never’ gets out once he has been placed in Ad Seg.” Id.
13 Ryan v. Selsky, 49 A.D.3d at 926.
14 ECF No. 24-1 at p. 28.
In this regard, Plaintiffs contend that they, along with all other inmates in SHU, are denied
access to “communal and denominational worship services,” “private religious
counseling,” and “any type of religious activities which cannot be performed in a cell by
oneself.” Plaintiffs allege that with regard to Central Office Ad Seg inmates, such denial
is not reasonably related to any legitimate penological interest.
The Second Cause of Action alleges that Administrative Ad Seg inmates placed in
SHU have only limited access to law library materials, which in at least one instance has
denied Hart access to the courts, all in violation of Plaintiffs’ rights under the Sixth and
Fourteenth Amendments. The Complaint states, for example, that prison law libraries are
now largely computerized, but Central Office Ad Seg inmates have no access to
computers. The Complaint further indicates that Central Office Ad Seg inmates have no
way to learn of new legal rulings since they do not have access to “advance sheets.” The
Complaint additionally contends that the procedure within SHU for inmates to request
legal materials from the law library is impermissibly cumbersome and time consuming,
since it requires inmates to request materials using “the exact citations of case law and
The Third Cause of Action alleges that Defendants have violated Plaintiffs’
Fourteenth Amendment Procedural Due Process rights by failing to provide the required
periodic review of Plaintiffs’ Ad Seg status. In that regard, the Complaint alleges that
Defendants have, in some instances, failed to conduct reviews altogether, and, in other
cases, have performed perfunctory reviews that were not “meaningful” in a constitutional
sense. Plaintiffs allege that DOCCS officials are required to perform such reviews at
specified intervals, but that in some instances the reviews have not occurred. Plaintiffs
also maintain that when such reviews have occurred, there has been no real discussion
or consideration by the committee members involved in the review process, and that
those parties have simply “rubber stamped” the recommendation of the facility deputy
superintendent for security, who typically drafts the Facility Committee’s report. Plaintiffs
indicate that the periodic review reports are often simply copied verbatim from prior
reports, and sometimes contain false information. Alternately, Plaintiffs contend that the
reports rely almost exclusively on Plaintiffs’ past misconduct, some of which was
committed decades earlier, without considering whether Plaintiffs pose any current threat.
Plaintiffs also state that there are no standards or criteria by which they may earn their
release from Ad Seg, and that their conditions of confinement are so restrictive that they
have no opportunity to demonstrate progress or personal growth, such as might cause
DOCCS officials to conclude that they no longer pose a risk of escape. In sum, Plaintiffs
allege that the review process is a sham, and that placement in Central Office Ad Seg is,
based on DOCCS practices, essentially permanent. 15
The Fourth Cause of Action alleges that the “horrible conditions” in SHU violate
the 8th Amendment’s prohibition on cruel and unusual punishment, particularly as they
are experienced by long-term Ad Seg inmates. Plaintiffs allege, for example, that they
are constantly exposed to the oppressive noises, odors and disruptive behaviors of
mentally ill inmates serving disciplinary sentences; that meals in SHU are frequently
unappetizing and inadequate, leaving inmates in a constant state of hunger; that medical
15 For example, in one of his responses to a review report, Hart stated: “These sixty (60) day ad seg
review are generated to satisfy the law. Nothing more. They are written in a routinely [sic] and repetitive
fashion and contain inaccurate, misleading and out right false information. They rely on decades-old
incidents that can (and will) never change. They are also written in a spiteful and vindictive manner. And
they are not ‘meaningful’ in any sense of the word.” ECF No. 31.
care for SHU inmates is subpar; that SHU inmates are not provided adequate means of
cutting their hair or trimming their nails; and that SHU facilities for visitors are dirty and
inadequate. Plaintiffs contend that long-term confinement under such conditions, such
as is experienced by Central Office Ad Seg inmates in SHU, is unnecessarily torturous,
inhumane and harmful to inmates’ mental and physical health, and violates contemporary
standards of decency.
The Fifth Cause of Action contends that Central Office Ad Seg inmates are treated
far worse than inmates confined to SHU for disciplinary reasons, without any rational
basis, thereby violating the Fourteenth Amendment’s Equal Protection Clause. Plaintiffs
state, for instance, that inmates in SHU for disciplinary reasons receive rehabilitative
programs, computer tablets, phone calls and commissary items, whereas Central Office
Ad Seg inmates do not.
Plaintiffs maintain that this alleged disparate treatment is
particularly inappropriate since Ad Seg confinement is supposed to be non-punitive. 16
The Sixth Cause of Action alleges that, for the same reasons already mentioned,
Central Office Ad Seg confinement violates Plaintiffs’ Fourteenth Amendment
Substantive Due Process rights, since it is “arbitrary, conscience-shocking and
oppressive, and is so egregious and outrageous that it shocks the contemporary
conscience.” 17 In support of this claim, Plaintiffs contend that Defendants have, for
decades, used such confinement to create “a de facto permanent solitary confinement
to SHU,” 18 despite being aware of the damaging effects of such confinement. In this
regard, Plaintiffs allege that while conditions in SHU are bad, and indeed,
16 Defendants admit that “Ad seg is not punitive but exists solely for the safety of the facility and inmates.”
ECF No. 24-2 at p. 1.
17 Complaint at ¶ 124.
18 Complaint at ¶ 125.
unconstitutional, for inmates serving relatively brief disciplinary sentences, they are even
worse for Ad Seg inmates, since Ad Seg inmates’ exposure to those conditions is
essentially permanent and unrelenting.
On August 3, 2017, the Court issued an Order (ECF No. 22) indicating that it had
screened the Complaint pursuant 28 U.S.C. § 1915A and had found, “at this early stage,”
that Plaintiffs’ claims were sufficient to proceed.
Nevertheless, on August 21, 2017, Defendants filed a motion (ECF No. 24)
purportedly seeking “partial summary judgment pursuant to Rule or [sic] 12(b) of the
Federal Rules of Civil Procedure.” Despite the reference in Defendant’s Notice of Motion
to “partial summary judgment,” Defendants were, according to their accompanying memo
of law, actually moving only for dismissal and not for partial summary judgment. 19
Defendants first contend that any aspects of Plaintiffs’ claims that arose more than
three years prior to the date the action was commenced are time-barred under the threeyear statute of limitations for Section 1983 claims. In that regard, Defendants maintain
that the matters complained of in Plaintiffs’ Complaint are all “discrete acts” that do not
fall under the “continuing violation doctrine.” Consequently, Defendants assert, with
regard to all six causes of action, that “[a]ll claims pertaining to events occurring prior to
December 12, 2013 should be dismissed.”
Defendants next contend that Plaintiffs’ Substantive Due Process claim fails as a
matter of law, since “numerous courts, both State and Federal,” have already rejected the
argument that it violates Substantive Due Process to confine non-punitive Ad Seg inmates
in SHU conditions. Alternatively, Defendants maintain that Plaintiffs have not pleaded
See, ECF No. 24-2 at p. 12 (“The Complaint should be dismissed as to all claims except Plaintiff Ryan’s
procedural Due Process Claims beginning December 12, 2013.”).
conditions that are arbitrary, conscience-shocking or oppressive in a constitutional sense.
Additionally, Defendants indicate that while Plaintiffs have alleged that their conditions of
confinement (long-term confinement in SHU) could be harmful to some inmates, they
have not alleged that they themselves have actually suffered harmful physical or
psychological effects therefrom.
Defendants further contend that the Court should dismiss all claims for money
damages involving substantive due process and conditions of confinement (but
apparently not claims involving procedural due process), on the grounds of qualified
immunity. On this point, Defendants argue that they are entitled to such immunity since
there is no legally binding precedent indicating that it is unconstitutional to keep inmates
in long-term Central Office Ad Seg confinement. Rather, Defendants state that courts
have repeatedly upheld the constitutionality of such confinement.
Finally, Defendants argue that Plaintiff Hart’s procedural due process claims must
be dismissed since the documentary evidence which they have submitted (consisting of
copies of Hart’s Ad Seg reviews spanning December 2014 to October 2016, which, they
maintain, are integral to the Complaint) indicates as a matter of law that Hart received
meaningful reviews of his Central Office Ad Seg placement. On this point, Defendants
state that the reports indicate that Hart’s reviews were performed according to established
New York State procedures, and that it is irrelevant whether, as Hart contends, the reports
used false or misleading information about Hart to justify his continued detention in Ad
Seg, since courts are not permitted, as part of a procedural due process inquiry, to review
the “substance” of a determination by corrections officials that an inmate should remain
in Ad Seg.
Plaintiffs oppose Defendants’ Motion. Plaintiffs first contend that Defendants’
argument concerning the statute of limitations is incorrect, since the continuing violation
doctrine applies to their claims. 20 Plaintiffs further dispute Defendants’ contention that
the Complaint fails to plead a “conscience-shocking” substantive due process claim.
Plaintiffs assert, in that regard, that they have plausibly alleged that long-term solitary
confinement in SHU amounts to torture, and that the documented cumulative effects of
such confinement, of which Defendants were aware, include the development of mental
illness. Plaintiffs further contend that they have personally experienced harmful effects
from such confinement. Additionally, Plaintiffs contend that such confinement is all the
more conscience shocking since it is unnecessary and would not have occurred if
Defendants had properly and meaningfully conducted the periodic Ad Seg reviews. Next,
Plaintiffs contend that qualified immunity does not apply to any of the defendants, since
the constitutional rights which Plaintiffs allege were violated were all clearly established,
such that a reasonable defendant would have realized that he was violating Plaintiffs’
rights. Plaintiffs also contend that Defendants are not entitled to judgment on Hart’s
procedural due process claims since there are clearly disputed issues of material fact.
Plaintiffs assert, for example, that there are issues of fact as to whether Defendants
conducted all of the required reviews of Hart’s Ad Seg status; 21 whether the periodic
reviews of Hart’s ad seg status that were conducted were based on false or misleading
information; whether the reviewers gave any consideration to Hart’s statements as
required; and whether the reviewers relied primarily if not exclusively on Hart’s conduct
In that regard, however, the pro se Plaintiffs evidently misunderstand the doctrine to pertain to any
claims that have been “continuing” for a long period of time.
21 Plaintiffs state, for example, that Hart received no reviews whatsoever for almost a year, between
October 19, 2016 and September 20, 2017.
from decades earlier while failing to consider whether he currently posed a threat to
Notably, in addition to filing a responding memorandum of law, Plaintiffs filed
several affidavits and accompanying exhibits. (ECF Nos. 31, 32, 35, 36, 37, 39). 22
Plaintiffs indicate that they have filed the affidavits in an abundance of caution, since, as
already mentioned, Defendants’ Notice of Motion refers to Defendants seeking “partial
summary judgment.” Plaintiffs maintain that it would be inappropriate for the Court to
grant summary judgment without first allowing them to conduct discovery. Nevertheless,
Plaintiffs indicate that have submitted affidavits and exhibits just in case the Court decides
to treat Defendants’ motion as one for summary judgment.
On November 1, 2017, Defendants filed an Amended Notice of Motion. (ECF No.
33). The sole purpose of the amended notice was apparently to remove the reference to
“partial summary judgment” that had appeared in Defendants’ original Notice of Motion
(ECF No. 24), apparently due to an editing oversight. Otherwise, the Amended Notice of
Motion merely reiterated that Defendants were moving for partial dismissal pursuant to
Fed. R. Civ. P. 12(b)(6).
Also, on November 1, 2017, Defendants filed a motion (ECF No. 34) to strike the
22 ECF No. 31 is an affidavit from Hart intending to show both that the alleged constitutional violations
have been “continuing” and that Defendants have not conducted proper periodic reviews. ECF No. 32 is
an affidavit from Hart purporting to show that that Defendants have not conducted proper reviews for
Ryan; that Ryan has filed grievances concerning conditions in SHU; that Plaintiffs have personally
suffered the effects of long-term confinement in SHU; and that the review process is a sham. ECF No. 35
is an affidavit from Hart purporting to further show that information included in Hart’s period Ad Seg
reviews was false. ECF No. 36 is an affidavit from Hart, along with a memo of law, urging the Court to
disregard Defendant’s Amended Notice of Motion (ECF No. 33). ECF No. 37 is an affidavit from Hart
further purporting to show that information contained in Hart’s Ad Seg reviews is false and that reviews
have been skipped. ECF No. 39 is another affidavit from Hart, indicating that Ad Seg inmates are still not
receiving reviews, and that when reviews are performed DOCCS officials fail to properly weigh the
inmates’ more-recent good behavior.
affidavits that Plaintiffs filed in response to Defendants’ original motion. In that regard,
Defendants argue that the affidavits are exhibits should not be considered on a Rule
12(b)(6) motion since they are neither part of nor integral to the Complaint.
The Court has considered the Complaint and the Parties’ submissions.
Plaintiffs Are Proceeding Pro Se
Since Plaintiffs are proceeding pro se, the Court has construed their submissions
liberally, “to raise the strongest arguments that they suggest.” Burgos v. Hopkins, 14 F.3d
787, 790 (2d Cir.1994).
Motions Under Rule Fed. R. Civ. P. 12(b)(6)
It is now clear that Defendants are not seeking partial summary judgment and are
only seeking partial dismissal under Rule 12(b)(6). The legal standards to be applied on
a motion to dismiss pursuant to Rule 12(b)(6) are clear:
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, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim is
facially plausible “when the plaintiff pleads factual content that 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, 129 S.Ct. 1937,
173 L.Ed.2d 868 (2009).
Progressive Credit Union v. City of New York, 889 F.3d 40, 48 (2d Cir. May 1, 2018).
While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not
need detailed factual allegations, a plaintiff's obligation to provide the
grounds of his entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action
will not do. Factual allegations must be enough to raise a right to relief above
the speculative level, on the assumption that all the allegations in the
complaint are true (even if doubtful in fact).
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964–65, 167 L.Ed.2d 929
(2007); see also, ATSI Communications, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d
Cir. 2007) (“To survive dismissal, the plaintiff must provide the grounds upon which his
claim rests through factual allegations sufficient ‘to raise a right to relief above the
speculative level.’ ”) (quoting Bell Atl. Corp. v. Twombly) (footnote omitted).
When applying this “plausibility standard,” the Court is guided by “two working
First, although a court must accept as true all of the allegations contained
in a complaint, that tenet is inapplicable to legal conclusions, and
threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice. Second, only a complaint that states
a plausible claim for relief survives a motion to dismiss, and determining
whether a complaint states a plausible claim for relief will be a contextspecific task that requires the reviewing court to draw on its judicial
experience and common sense.
Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (citations and internal quotation marks
omitted). “[W]here the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged—but it has not shown—that the
pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 1950
(2009) (citation omitted).
Defendants’ Motion to Strike
Defendants have moved to strike the affidavits and exhibits that Plaintiffs filed in
response to Defendants’ original motion, contending that the affidavits and exhibits fall
outside the scope of what the Court may properly consider on a Rule 12(b)(6) motion. It
is clear that when addressing a Rule 12(b)(6) application,
the Court is entitled to consider facts alleged in the complaint and
documents attached to it or incorporated in it by reference, documents
“integral” to the complaint and relied upon in it, and facts of which judicial
notice may properly be taken under Rule 201 of the Federal Rules of
Heckman v. Town of Hempstead, 568 F. App'x 41, 43 (2d Cir. Jun. 3, 2014) (citations and
internal quotation marks omitted).
“A matter is deemed ‘integral’ to the complaint when the complaint ‘relies
heavily upon its terms and effect.’ Typically, an integral matter is a contract,
agreement, or other document essential to the litigation.” Palin v. New York
Times Co., 940 F.3d 804, 811 (2d Cir. 2019). “For a court to regard a
document as ‘integral,’ ‘it must be clear on the record that no dispute exists
regarding the authenticity or accuracy of the document,’ and ‘[i]t must also
be clear that there exist no material disputed issues of fact regarding the
relevance of the document.’” Clybourn v. Spiderbands LLC, No. 18 CIV.
03688 (ER), 2018 WL 6528234, at *2 (S.D.N.Y. Dec. 12, 2018) (quoting
Faulkner v. Beer, 463 F.3d 130, 134 (2d Cir. 2006)).
DPC New York, Inc. v. Scottsdale Ins. Co., No. 19 CIV. 1743 (PGG), 2020 WL 2555241,
at *5 (S.D.N.Y. May 19, 2020).
Here, it was not unreasonable for Plaintiffs to submit affidavits, considering that
Defendants had indicated in their original notice of motion that they were moving for partial
However, now that Defendants have corrected that error and
clarified that they are only seeking relief under Rule 12(b)(6), it is clear that some of the
materials submitted by Plaintiffs should not be considered, while other materials could be
considered. In particular, the affidavits should not be considered, while most, if not all, of
the exhibits attached to the affidavits, consisting primarily of Plaintiffs’ Ad Seg review
reports, could be considered as integral to the Complaint. However, the Court need not
engage in a lengthy discussion of the voluminous exhibits to explain which ones are
integral to the Complaint and which are not, since the Court finds that, with one exception
not involving the disputed documents, 23 Plaintiffs’ Complaint is sufficient on its own to
withstand Defendants’ motion to dismiss, without regard to the later-filed affidavits and
exhibits. Consequently, Defendants’ motion to strike (ECF No. 34) is denied as moot.
The Court will now turn to the merits of Defendants’ motion to dismiss.
Plaintiffs are suing pursuant to 42 U.S.C. § 1983. “In order to establish individual
liability under § 1983, a plaintiff must show (a) that the defendant is a ‘person’ acting
‘under the color of state law,’ and (b) that the defendant caused the plaintiff to be deprived
of a federal right.” Back v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107, 122
(2d Cir. 2004) (citation omitted).
Statute of Limitations
Defendants first contend that Plaintiffs’ claims, all of which purportedly arise under
42 U.S.C. § § 1983 and 1985, are barred to the extent that they arose more than three
years prior to the filing of this action. Defendants’ relatively terse argument on this point
focuses primarily on Plaintiff’s Fourteenth Amendment Procedural Due Process claim,
and maintains that the “continuing violation doctrine” does not apply to such claim.
Defendants then add, without further explanation, that “This is true for both the Due
Process claims and the conditions of confinement claims.” (emphasis added).
Plaintiffs do not dispute that a three-year-statute of limitations applies to Section
1983 claims, nor do they maintain that any period of tolling should apply. However, they
contend that their claims are nevertheless timely under the continuing violation doctrine.
The general law on these points is well settled:
As will be discussed below, some of Plaintiff’s procedural due process claims are time-barred.
The statute of limitations for actions brought in New York pursuant to §§
1983 and 1985 is three years. See Paige v. Police Dep't of City of
Schenectady, 264 F.3d 197, 199 n.2 (2d Cir 2001) (§§ 1983 and 1985);
Okure v. Owens, 816 F.2d 45, 49 (2d Cir. 1987) (§ 1983). Claims brought
pursuant to §§ 1983 and 1985 accrue “once the plaintiff knows or has
reason to know of the injury which is the basis of his action.” Cornwell v.
Robinson, 23 F.3d 694, 703 (2d Cir. 1994) (internal quotation marks
omitted). Under the continuing violation doctrine, a plaintiff may bring claims
that would otherwise be barred by the statute of limitations provided that “an
act contributing to that [violation] took place within the statutory time period.”
Purcell v. N.Y. Inst. of Tech. - Coll. of Osteopathic Med., 931 F.3d 59, 65
(2d Cir. 2019). The continuing violation doctrine applies only “to claims that
by their nature accrue only after ... some threshold amount of mistreatment,”
and not to “discrete unlawful acts, even where those discrete acts are part
of a serial violation.” Gonzalez v. Hasty, 802 F.3d 212, 220 (2d Cir. 2015)
(internal quotation marks omitted).
Sant v. Stephens, 821 F. App'x 42, 44–45 (2d Cir. 2020).
Here, the Court agrees with Defendants that the continuing violation doctrine does
not apply to Plaintiff’s procedural due process claims, since the reviews of Plaintiffs’ Ad
Seg placement are discrete acts. See, Gonzalez v. Hasty, 802 F.3d 212, 223 (2d Cir.
2015) (“[A] discrete claim may accrue under the Fifth Amendment each time that a
defendant fails to provide an inmate with the notice, hearing, or evaluation to which he is
entitled after a liberty interest attaches. These denials or failures are discrete acts, which
may combine to form a “serial violation.” But Morgan forecloses the continuing violation
doctrine's application to claims of this nature. [Natl’ R.R. Passenger Corp. v.] Morgan,
536 U.S. [101,] 114–15, 122 S.Ct. 2061 [(2002)].”); see also, Smith v. Annucci, No. 6:18CV-06261 EAW, 2019 WL 539935, at *5 (W.D.N.Y. Feb. 11, 2019) (“The procedural due
process violations complained of by Plaintiff in this case, while arguably part of a serial
violation of his constitutional rights, constitute discrete unlawful acts. Plaintiff could have
brought a claim for violation of his right to procedural due process each time his
administrative segregation was continued.”).
Consequently, Defendants’ motion to
dismiss is granted as to Plaintiffs’ procedural due process claims that are based on Ad
Seg reviews that took place more than three years prior to the commencement of this
As for Plaintiffs’ remaining claims, Defendants merely assert that Plaintiffs’
“conditions of confinement claims” are also time barred since Plaintiffs could have
challenged the alleged conditions of confinement violations at the time they occurred by
filing either an inmate grievance or an Article 78 proceeding. 24 The Court understands
Defendants to argue that Plaintiffs’ claims under the First, Sixth and Eighth Amendments,
as well as their Fourteenth Amendment equal protection and substantive due process
claims, fall outside of the continuing violation doctrine.
However, Defendants have not attempted to explain how Plaintiffs’ Eighth
Amendment Claims and Substantive Due Process Claims, both of which are based on
the long duration and cumulative effects of Plaintiffs’ putatively non-punitive confinement
in SHU, are ineligible for inclusion under the continuing violation doctrine. See, e.g., Smith
v. Annucci, 2019 WL 539935 at *7 (“[U]nlike his procedural due process claim, Plaintiff’s
Eighth Amendment claims state a continuing violation, because they did not accrue until
sufficient time had passed to render Plaintiff’s continued confinement cruel and unusual.
See Gonzalez [v. Hasty] , 802 F.3d [212,] 224 [(2d Cir. 2015)] (“An Eighth Amendment
claim predicated on SHU confinement ... typically accrues only after an inmate has been
confined in the SHU for a prolonged period of time.... [The plaintiff’s Eighth Amendment]
claim as he has pled it, assuming it otherwise is viable, accrued only after the defendants
See, Defs. Memo of Law, ECF No. 24-2 at p. 5 (“This is true for both the Due Process claims and
conditions of confinement claims.”).
had confined him in the SHU for some threshold period of time. This renders the
continuing violation doctrine applicable.”)).
Neither have Defendants shown at this stage of the litigation that Plaintiffs’ claims
under the First and Sixth Amendments, or Plaintiffs’ Fourteenth Amendment equal
protection claim, are necessarily time barred, since they did not make any detailed
statute-of-limitations argument concerning those claims in their moving papers 25 and did
not file a reply to Plaintiffs’ response. Accordingly, the Court finds that Defendants have
not shown that they are entitled to dismissal on statute of limitations grounds as to those
To reiterate, insofar as Defendants’ motion to dismiss is based on the statute of
limitations, it is granted as to any procedural due process claims that arose more than
three years prior to the commencement of this action, but is otherwise denied.
The Substantive Due Process Claim 26
Defendants next contend that Plaintiffs’ substantive due process claim must be
dismissed since “claims that ad seg violates [inmates’] Substantive Due Process rights
because [the inmates] are not punitively confined yet are subject to SHU conditions ha[ve]
been considered and rejected by numerous courts, both State and Federal.” Phrased in
this manner, Defendants’ argument implies that it is settled law that an inmate placed in
Central Office Ad Seg cannot assert a meritorious substantive due process claim based
on the conditions in SHU.
See, Def. Memo of Law [#24-2] at pp. 4-6.
Defendants have not offered a basis to dismiss Plaintiffs’ equal protection claims. In that regard, as
part of Defendants’ arguments concerning substantive due process, they make a single passing
reference to “equal protection,” but do not make a reasoned argument for dismissing Plaintiffs’ Equal
Protection claim. ECF No. 24-2 at p. 6.
However, the cases that Defendants have cited are neither binding on this Court
nor apposite to Plaintiffs’ claims in this action. For example, in Matter of Rifkin v. Goord,
273 A.D.2d 878, 880 (4th Dept. 2000), the New York State Supreme Court, Appellate
Division Fourth Department, affirmed the dismissal of a substantive due process claim by
an inmate placed in administrative segregation in the SHU, finding that the inmate did not
have a liberty interest. Id. (“With respect to petitioner's substantive due process rights,
petitioner's placement in administrative segregation does not ‘trigger[ ] due process
protection” because that “segregated confinement [does] not present the type of atypical,
significant deprivation in which a State might conceivably create a liberty interest’ (Sandin
v Conner, 515 US 472, 485-486)”). However, there is no indication that the claim by the
inmate in Rifkin was factually similar to the claims being asserted by Plaintiffs here, which
involve confinement in Ad Seg for decades, allegedly without either procedural due
process protection or any valid penological justification.
A second case cited by
Defendants, Tulloch v. Coughlin, 1995 WL 780970 (W.D.N.Y. Dec. 22, 1995), is also
inapposite for the same reasons. In the third and final case cited by Defendants, Rifkin
v. Goord, No. 99-CV-6479, 2005 WL 735943 (W.D.N.Y. Mar. 31, 2005), the federal court
dismissed the inmate plaintiff’s claims on collateral estoppel grounds, without addressing
the merits of his claims. 27 Consequently, none of the cases which Defendants have cited
compel the Court to dismiss Plaintiffs’ substantive due process claim.
Defendants nevertheless contend, alternatively, that the substantive due process
27 It is not clear from this decision that Rifkin was even raising a substantive due process claim in federal
court. See, id. However, even if he was, the court granted summary judgment based on the collateral
estoppel procedural bar, without addressing the merits of the claims. Consequently, it is incorrect for
Defendants to argue, as they did in their memo of law, that the “reasoning [of the state court] was upheld”
by the federal court. See, Def. Memo of Law (ECF No. 24-2) at p. 6.
claim fails because Plaintiffs have “not pled a condition which is arbitrary, conscienceshocking, or oppressive in a constitutional sense.” 28
However, treating the factual
allegations in the Complaint as true, as the Court must, the Court cannot say as a matter
of law that Plaintiffs have failed to plead a condition that is shocking to the conscience.
Again, in that regard, Plaintiffs allege that they have been confined in solitary confinement
for decades, without procedural safeguards and without any legitimate penological
justification. Moreover, the Complaint alleges that Defendants have confined Plaintiffs in
this manner despite knowing the harmful effects of such long-term solitary confinement.
Finally, Defendants contend that the Court should dismiss the substantive due
process claim because even assuming that decades-long solitary confinement is
potentially harmful to inmates’ mental health, Plaintiffs have not alleged that they
personally suffered mental health injury due to their Ad Seg confinement in SHU.
However, the Court again disagrees with Defendants and finds that the reasonable
inference from the facts alleged in the Complaint is that Plaintiffs personally suffered
negative effects from their long-term confinement in SHU. See, e.g., Complaint at ¶ 131
(“Defendants’ actions have caused the named . . . Plaintiffs untold misery and suffering
due solely to Plaintiffs’ confinement to SHU, despite knowing the harmful effects of longterm SHU confinement.”); see also id. at ¶ ¶ 14-16, 20, 80-90, 124-125 (alleging effects
of long-term SHU confinement).
For these various reasons Defendants’ motion to dismiss the substantive due
process claim is denied. 29
Def. memo of Law (ECF No. 24-2) at p. 7.
In finding that Defendants have not shown their entitlement to dismissal of the claim, the Court is not
expressing any view concerning the claim’s ability to withstand arguments that Defendants did not make.
See, e.g., H'Shaka v. O'Gorman, 444 F. Supp. 3d 355, 371 (N.D.N.Y. 2020) (“The Court finds that
Defendants next maintain that the “substantive due process claims and conditions
of confinement claims” should be dismissed based on the concept of qualified immunity,
which is an affirmative defense to claims for money damages under Section 1983:
Section 1983 establishes a private right of action for money damages
against state officials, acting “under color” of law, who violate a
constitutional or statutory right. 42 U.S.C. § 1983. This “deter[s]
transgressions.” [Johnson v.] Newburgh [Enlarged Sch. Dist.,] 239 F.3d
[246,] 250 [(2d Cir. 2001)]. At the same time, “permitting damages suits
against government officials can entail substantial social costs, including
the risk that fear of personal monetary liability and harassing litigation will
unduly inhibit officials in the discharge of their duties.” Anderson v.
Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). To
balance the need for accountability and the potential chilling effect, “the
Supreme Court established qualified immunity as an affirmative defense to
§ 1983 claims.” Newburgh, 239 F.3d at 250. This defense is designed to
“reduce[ ] the general costs of subjecting officials to the risks of trial” by
immunizing them from monetary liability “based on unsettled rights.”
Connell v. Signoracci, 153 F.3d 74, 79 (2d Cir. 1998) (internal quotation
Officers are entitled to qualified immunity “unless a plaintiff pleads facts
showing (1) that the official violated a statutory or constitutional right, and
(2) that the right was ‘clearly established’ at the time of the challenged
conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735, 131 S.Ct. 2074, 179
L.Ed.2d 1149 (2011) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102
S.Ct. 2727, 73 L.Ed.2d 396 (1982) ).
Edrei v. Maguire, 892 F.3d 525, 532 (2d Cir. 2018).
Motions to dismiss under Rule 12(b)(6) based on qualified immunity are not
Plaintiff's claims of unconstitutional conditions of confinement and deliberate indifference to his medical
needs are all encompassed by a more specific constitutional provision–the Eighth Amendment–and, as a
result, the Substantive Due Process Clause is not the appropriate vehicle for those claims.”) (collecting
typically granted, owing to the often fact-intensive nature of the defense. See, e.g.,
Hanson v. LeVan, 967 F.3d 584, 597 (7th Cir. 2020) (Referring to “the mismatch between
the 12(b)(6) plausibility standard and the often fact-intensive nature of qualified-immunity
inquiries.”). However, such a dismissal under Rule 12(b)(6) may be appropriate where,
for example, a defendant can demonstrate that, as a matter of law, the constitutional right
that is alleged to have been violated was not “clearly established” at the time of the alleged
Although the applicability of a qualified immunity defense is often factintensive, “if, upon drawing every factual inference in favor of the plaintiff,
the question is purely the state of the law at the time of a defendant's
allegedly tortious conduct, so that the court can determine whether a
reasonable state agent should have known that what he was doing violated
the law, then a court can determine the availability of qualified immunity on
a motion to dismiss under Rule 12(b)(6).” Birch v. City of New York, 184 F.
Supp. 3d 21, 28 (E.D.N.Y. 2016), aff'd, 675 F. App'x 43 (2d Cir. 2017).
Schultz v. Cty. of Suffolk, No. 19CV0925JMAARL, 2020 WL 7699944, at *7 (E.D.N.Y.
Sept. 4, 2020), report and recommendation adopted, No. 19CV925JMAARL, 2020 WL
7041090 (E.D.N.Y. Nov. 30, 2020).
In deciding whether a plaintiff’s purported Section 1983 claim is based on a “clearly
established” right, a court must determine whether the state of the law was sufficiently
clear at the relevant time that any reasonable defendant would have known that his
actions were unlawful:
To be sure, “a case directly on point” is not required “for a right to be clearly
established.” White v. Pauly, ––– U.S. ––––, 137 S. Ct. 548, 551, 196
L.Ed.2d 463 (2017) (per curiam). At the same time, “existing precedent must
have placed the statutory or constitutional question beyond debate.” Id.
(emphasis added). “‘Clearly established’ means that, at the time of the
officer's conduct, the law was sufficiently clear that every ‘reasonable official
would understand that what he is doing’ is unlawful.” Wesby, 138 S. Ct. at
589 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131 S.Ct. 2074, 179
L.Ed.2d 1149 (2011)). In practice, this means that “‘controlling authority’ or
‘a robust consensus of cases of persuasive authority’” dictate the action at
issue. Id. at 589–90 (quoting al-Kidd, 563 U.S. at 741–42, 131 S.Ct. 2074).
A plaintiff must show with a high “degree of specificity,” Mullenix v. Luna,
577 U.S. 7, 136 S. Ct. 305, 309, 193 L.Ed.2d 255 (2015) (per curiam), that
the rule he seeks to apply prohibited the officer's conduct. See Wesby, 138
S. Ct. at 590; see also City and County of San Francisco v. Sheehan, 575
U.S. 600, 135 S. Ct. 1765, 1775–76, 191 L.Ed.2d 856 (2015) (noting that
the Supreme Court has “repeatedly told courts ... not to define clearly
established law at a high level of generality”). In other words, an official is
immune from liability unless, under the particular circumstances the official
faced, any “reasonable offic[ial]” would have “known for certain that the
conduct was unlawful” under then-existing precedent. Ziglar v. Abbasi, –––
U.S. ––––, 137 S. Ct. 1843, 1867, 198 L.Ed.2d 290 (2017).
Liberian Cmty. Ass'n of Connecticut v. Lamont, 970 F.3d 174, 186–87 (2d Cir. 2020); see
also, Ziglar v. Abbasi, 137 S. Ct. at 1866–67 (“It is not necessary, of course, that the very
action in question has previously been held unlawful. That is, an officer might lose
qualified immunity even if there is no reported case directly on point. But in the light of
pre-existing law, the unlawfulness of the officer's conduct must be apparent. . . .
[Q]ualified immunity protects all but the plainly incompetent or those who knowingly
violate the law.”) (citations and internal quotation marks omitted).
In the instant action, Defendants contend that there is no “binding precedent” that
would have alerted them that their actions were unlawful. In doing so, Defendants frame
the issues by stating that,
[r]egarding conditions of confinement, the question presented is whether
there is plain, legally binding precedent holding that keeping ad seg inmates
in the conditions required by § 7 N.Y.C.R.R. 301.4(c) is unconstitutional.
Regarding substantive Due Process, the question presented is whether
there is plain binding precedent holding that keeping an inmate in ad seg
for an extended period of time based on the recommendations of security
experts is unconstitutional.
Def. Memo of Law (ECF No. 24-2) at p. 9.
However, the Court finds that “drawing every factual inference in favor of the
plaintiffs,” Defendants have not shown that they are entitled to dismissal based on
Indeed, Defendants have framed the issues incompletely, in a
manner that overlooks Plaintiffs’ factual allegations which, if proven, could establish that
Plaintiffs were kept in Ad Seg in violation of their procedural due process rights and other
rights that were clearly established at the relevant time. See, Smith v. Annucci, No. 6:18CV-06261 EAW, 2019 WL 539935, at *7 (W.D.N.Y. Feb. 11, 2019) (“Here, the Court finds
that there are issues of fact regarding Defendants' entitlement to qualified immunity. . . .
If, as Plaintiff alleges, Defendants knowingly confined him in administrative segregation
for multiple decades strictly for punitive reasons and without penological justification, the
Court cannot conclude, at this stage of the proceedings, that qualified immunity would
shield those actions.”); see also, id. (“Plaintiff’s Eighth Amendment claims are intertwined
with his procedural due process claims – if Defendants have failed to provide any
meaningful review of Plaintiff’s status for more than 20 years but have instead held him
in administrative segregation for solely punitive reasons, his right to due process and his
right to be free from cruel and unusual punishment are both implicated.”); H'Shaka v.
O'Gorman, 444 F. Supp. 3d 355, 389–90 (N.D.N.Y. 2020) (“Faced with the questions of
fact that remain to be resolved in this case, the Court finds that it would be inappropriate
to conclude that Defendants are entitled to the protection of qualified immunity at this
stage of the litigation. In particular, the Court notes that, although Proctor was decided in
2017 (after Plaintiff had already been in Ad Seg for a significant period of time, but still
relevant to a portion of the period covered by this litigation), it was already well established
that due process must be afforded in a “meaningful manner.” Armstrong v. Manzo, 380
U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965); accord Parratt v. Taylor, 451 U.S.
527, 540, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981); Mathews v. Eldridge, 424 U.S. 319,
333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); Goldberg v. Kelly, 397 U.S. 254, 267, 90 S.Ct.
1011, 25 L.Ed.2d 287 (1970). Therefore, if a factfinder were to conclude that the Ad Seg
reviews were guided by a pre-determined conclusion rather than a fair assessment of the
facts, it would arguably mean that Defendants did not afford due process in a meaningful
manner. Additionally, as already discussed, the Supreme Court indicated in 2002 (well
before Plaintiff was placed in Ad Seg) that the Eighth Amendment is violated by conditions
that are totally without penological justification, and there remain material disputes of fact
as to whether there was a legitimate penological justification for Plaintiff's continued
retention in Ad Seg. Hope, 536 U.S. at 737, 122 S.Ct. 2508. As a result, Defendants
could be potentially found to have violated clearly established law depending on how a
factfinder were to resolve the disputed issues of fact.”). Consequently, Defendants’
motion is denied insofar as it is based on qualified immunity.
Procedural Due Process
Finally, Defendants maintain that they are entitled to dismissal of Hart’s procedural
due process claims as a matter of law, purportedly since “the relevant reports
demonstrate that all three Proctor criteria were met, and none of these factors relied upon
by the Proctor court to find a question of fact are present here.” Def. Memo of Law (ECF
No. 24-2) at p. 11. (Defendants have not similarly moved against Ryan’s procedural due
process claim) 30 In this regard, Defendants are referring to the relevant analysis set forth
Defendants’ motion (ECF No. 24) does not seek dismissal of Plaintiff Ryan’s procedural due process
claims, except insofar as they may have accrued more than three years prior to the commencement of
by the Second Circuit in Proctor, cited earlier, for evaluating procedural due process
claims involving inmates kept in Central Office Ad Seg:
[M]eaningful periodic reviews of Ad Seg must at least satisfy the following
First, the reviewing prison officials must actually evaluate whether the
inmate’s continued Ad Seg confinement is justified. It is not sufficient for
officials to go through the motions of nominally conducting a review meeting
when they have developed a pre-review conclusion that the inmate will be
confined in Ad Seg no matter what the evidence shows. Review with a preordained outcome is tantamount to no review at all.
Second, the reviewing officials must evaluate whether the justification for
Ad Seg exists at the time of the review or will exist in the future, and consider
new relevant evidence as it becomes available. [Periodic] Ad Seg reviews
may not be frozen in time, forever rehashing information addressed at the
inmate’s initial Ad Seg determination. Rather, reviews must take into
account prison conditions and inmate behavior as they change over time;
those changes may modify the calculus of whether the inmate presents a
current threat to the safety of the facility. The [relevant question] is not
whether the confined inmate was a threat to the facility when he was
confined initially; it is whether the inmate “remains a security risk” on the
date of the periodic review. This is not to say that prison officials are barred
from according significant weight to events that occurred in the past. Neither
do we suggest that recent events categorically ought to be more salient in
periodic reviews than those that occurred long ago. We conclude merely
that prison officials must look to the inmate’s present and future behavior
and consider new events to some degree to ensure that prison officials do
not use past events alone to justify indefinite confinement.
Third and finally, the reviewing officials must maintain institutional safety
and security (or another valid administrative justification) as their guiding
principles throughout an inmate’s Ad Seg term. SHU confinement that
began for proper Ad Seg purposes may not morph into confinement that
persists for improper purposes. . . . The state may not use Ad Seg as a
charade in the name of prison security to mask indefinite punishment for
this action. See, ECF No. 24-2 at p. 12 (“The Complaint should be dismissed as to all claims except
Plaintiff Ryan’s procedural Due Process claims beginning December 12, 2013.”).
Proctor v. LeClaire, 846 F.3d at 610–11 (citations omitted).
Defendants assert that the documentation which they have submitted establishes
that Hart received meaningful review of his Ad Seg status as required by Proctor.
Defendants essentially contend that the Court must accept the reasons set forth in the Ad
Seg review documents at face value, since the Court is not permitted to review the
“substance” of the committees’ decisions. On this point, the Second Circuit in Proctor
Proctor’s claim cannot serve as an appeal from his section 301.4(d)
reviews. Procedural due process does not permit a court to review the
substance of the Defendants’ decision to confine Proctor in Ad Seg. We
may not substitute our judgment for Defendants’, nor may we rebalance the
section 301.4(d) criteria. The Due Process Clause permits only an
evaluation of whether Defendants’ method of coming to their Ad Seg
determination is sufficient.
Proctor, 846 F.3d at 608. Defendants interpret this to mean, for example, that the Court
must ignore Plaintiffs’ assertions that Hart’s review documentation contains false and
misleading information. See, Def. Memo of Law (ECF No. 24-2) at p. 11 (“Plaintiff Hart’s
response [maintains] that the [committees’] allegations pertaining to his behavior were
untrue or pretextual. In doing so, he asks the Court to do precisely what may not take
place on a procedural Due Process claim; to review the substance of the decision, to
substitute its judgment for that of Attica security and administrative staff, and to accord
staff’s decision no deference at all.”).
However, Defendants are incorrect on this point. Plaintiffs are not asking the Court
to substitute its judgment or to re-balance the section 301.4(d) criteria. Rather, Plaintiffs
are challenging the methods that Defendants used, which is plainly permitted by Proctor.
Indeed, the factual assertions by Plaintiffs here relating to those methods are quite similar
to the ones that survived summary judgment in Proctor.
The Complaint alleges, for
example, that the review documentation contains fabricated accounts of misbehavior by
Hart; that the reports frequently merely repeat information from earlier reports often
utilizing identical language; that the reports themselves indicate that committee members
never actually met to discuss Hart’s situation; that the reports are really focused just on
the conduct that resulted in Hart being placed in Ad Seg in the first place, and not on
whether he presently poses any danger if released from Ad Seg; that Ad Seg inmates
have no “goalposts” by which to earn their release from Ad Seg; and that no prisoner
confined to Ad Seg for escape has ever been released from Ad Seg.
In sum, the Court finds that Defendants’ motion to dismiss Hart’s procedural due
process claim must be denied since there are issues of fact as to whether the periodic
reviews that he received comport with the requirements set forth in Proctor. See, e.g.,
Smith v. Annucci, 2019 WL 539935, at *4 (“Here, Plaintiff alleges that he has been
deprived of any meaningful review of his continued confinement in administrative
segregation, that Defendants have pre-ordained that he will remain in administrative
segregation indefinitely, and that Defendants have failed to take into new relevant
information regarding his dangerousness (or lack thereof) as it has become available. As
assessed against the standards set forth in Proctor, Plaintiff has clearly set forth a viable
procedural due process claim.”); see also, Walker v. Bellnier, No. 917CV1008GTSCFH,
2019 WL 2479612, at *8 (N.D.N.Y. Jan. 15, 2019) (“Although similar language in periodic
reviews “does not necessarily mean that the reviews” are a “sham,” see Zimmerman v.
Seyfert, No. 9:03-CV-1389 (TJM), 2007 WL 2080517, at *19 (N.D.N.Y. July 19, 2007),
taking the allegations in the Amended Complaint as true, at this stage in the litigation, the
facts suggest that Defendants did not provide Walker with meaningful, periodic reviews
regarding his continued administrative confinement.”), report and recommendation
adopted, No. 917CV1008GTSCFH, 2019 WL 1305825 (N.D.N.Y. Mar. 22, 2019).
Defendants’ motion to strike (ECF No. 34) is denied. Defendants’ motion to
dismiss (ECF No. 33) is granted in part, and any procedural due process claim that
accrued prior to December 12, 2013 is dismissed. Otherwise, Defendants’ motion to
dismiss is denied.
Dated: Rochester, New York
July 15, 2021
CHARLES J. SIRAGUSA
United States District Judge
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