Smith v. Annucci et al

Filing 14

DECISION AND ORDER granting in part and denying in part 8 Motion to Dismiss. Signed by Hon. Elizabeth A. Wolford on 02/11/2019. (CDH)

FEB 1 1 2019

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

'V^^^::;S=^OEWENGU^tiJ
DISTRlCt
LEMUEL SMITH,
DECISION AND ORDER

Plaintiffs,
6:I8-cv-0626I LAW

V.

ANTHONY J. ANNUCCI,Acting Commissioner,
Department ofCorrections and Community
Supervision, et al,
Defendants.

Plaintiff Lemuel Smith ("Plaintiff) is an inmate in the custody of the New York
State Department of Corrections and Community Supervision ("DOCCS"), currently
housed at the Five Points Correctional Facility ("Five Points"). (Dkt. I at

2-3).

Represented by counsel. Plaintiff alleges that he has been unlawfully held in "conditions

ofextreme isolation and restricted movement for nearly 37 years," first in DOCCS' Special
Housing Unit(the "SHU"), and then,"for the past 22 years, in Administrative Segregation
('Ad Seg') status." {Id. at T| 2). Pursuant to 42 U.S.C § 1983, Plaintiff alleges violations

of his Eighth Amendment right to be free from cruel and unusual punishment and his
Fourteenth Amendment right to due process of law. {Id. at

80-100).

Defendants have filed a motion pursuant to Federal Rule of Civil Procedure 12(b)(6)
seeking partial dismissal ofPlaintiffs Complaint. (Dkt. 8). In particular. Defendants seek
dismissal of all of Plaintiffs claims except his procedural due process claims beginning

March 30, 2015. (Dkt. 8-1 at 12). Defendants further argue that Plaintiffshould be limited
to seeking only nominal and punitive damages. {Id.). For the reasons discussed below,
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Defendants' motion is granted with respect to Plaintiffs substantive due process claim and

as to his procedural due process claim to the extent it relies on reviews of his status that
occurred before March 30, 2015, and is denied in all other respects.
FACTUAL AND PROCEDURAL BACKGROUND

1.

Factual Background

The facts underlying Plaintiffs initial commitment to the SHU and subsequent
placement in administrative segregation are a matter ofpublic record, having been litigated
in numerous courts, and are set forth below to provide context. As is required at this stage

of the proceedings, the Court has treated Plaintiffs factual allegations set forth in the
Complaint as true.

In May 1981, Plaintiff, who was then serving two 25-years-to-life sentences for
second degree murder, murdered Corrections Officer Donna Payant at the Green Haven

Correctional Facility ("Green Haven"). Smith v. Coughlin, 748 F.2d 783, 785 (2d Cir.
1984). Plaintiff was convicted of first degree murder in April 1983 and was sentenced to
death in June 1983. Id. He was thereafter transferred to the Unit of Condemned Persons

at Green Haven. Id. In June 1984, the New York Court of Appeals ruled that the portion

of New York's death penalty statute pursuant to which Plaintiff had been sentenced was
unconstitutional, vacated Plaintiffs death sentence, and remanded for resentencing.

People V. Smith, 63 N.Y.2d 41, 79 (1984).

Plaintiff was thereafter sentenced to life

imprisonment. Smith v. Goord, 250 A.D.2d 946, 946 (3d Dep't 1998). The New York
State Appellate Division, Third Department(the "Appellate Division") has explained:

In addition, following a tier III disciplinary hearing, petitioner was found
guilty of institutional rule violations in connection with the Payant murder
and as a penalty received 15 years in the special housing unit. In September
1996,just prior to the completion ofthat penalty, petitioner was given notice
of the recommendation that he be placed in administrative segregation

pursuant to 7 NYCRR 301.4^ Following a hearing conducted pursuant to 7
NYCRR 301.4(a) and 7 NYCRR part 254, the recommendation was
confirmed and administrative segregation was ordered. That determination
was affirmed upon administrative review[.]

Id. Plaintiff challenged his placement in administrative segregation in state court, and the
Appellate Division affirmed DOCCS' decision, finding:
Deferring to [DOCCS'] unique expertise in predicting inmates' future
behavior on the basis of a subjective evaluation of their past conduct, we
conclude that the considerable record evidence concerning petitioner's
numerous heinous crimes,including his several murder convictions and other
acts of brutality toward women, and particularly his murder of a prison
employee while housed in a maximum security prison, adequately support
the conclusion that petitioner is a sexual predator who cannot be released into
the general prison population without posing a serious threat to the life and
safety offemale employees[.]
Id. at 947.

Pursuant to New York State regulation,"[a]n inmate in administrative segregation
status shall have such status reviewed every 60 days" by a "three-member committee
consisting of a representative of the facility executive staff, a security supervisor, and a
member of the guidance and counseling staff." 7 NYCRR § 301.4(d). The committee is
instructed to "examine the inmate's institutional record and prepare and submit to the

superintendent . . . a report setting forth . . .: (i) reasons why the inmate was initially
determined to be appropriate for administrative segregation; (ii) information on the

^

"NYCRR" refers to the New York Codes, Rules and Regulations.
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inmate's subsequent behavior and attitude; and (iii) any other factors that they believe may
favor retaining the inmate in or releasing the inmate from administrative segregation." Id.
Thereafter, the superintendent is to review the committee's report along with "any written
statement received from the inmate," and to "make a determination to retain the inmate in

or release the inmate from administrative segregation." Id. Plaintiff alleges that he has not
received meaningful review of his administrative segregation status since it began in 1996,

and that instead Defendants have arbitrarily and capriciously predetermined that Plaintiff
will stay in administrative segregation status indefinitely. (Dkt. 1 at

95-96).

Plaintiff further alleges that the conditions of his confinement in administrative
segregation have been detrimental to his physical and mental health and amount to cruel

and unusual punishment. {Id. at ^ 46). In administrative segregation. Plaintiff has limited

contact with his family and friends and "no access to group recreation, group education,
group prayer, or group meals." {Id. at TfT| 48-49). Plaintiff is confined by himself to his
cell for "23 to 24 hours each day" and, because he must use a wheelchair, "is sedentary

nearly 24 hours each day[.]" {Id. at

3, 50-51). Plaintiffs cell has one small window

which faces a "recreational cage" that adjoins his cell and is accessible through a door. {Id.

at ^ 53). Plaintiffs cell was, until recently, located near the "strip cell" where prisoners
suffering from mental illness are temporarily held, and Plaintiff was "regularly subjected

to [those prisoners'] screaming, outbursts, and banging." {Id. at ^ 55). Plaintiffs physical
limitations prevent him from cleaning his own cell, so a porter cleans it each Saturday. {Id.
at ^ 56). Plaintiff is given two hours per day of "recreation time," during which he is
allowed access to the recreational cage that adjoins his cell. {Id. at ^ 57).
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From 2013 until approximately April 2017, Plaintiff was allowed one 30-minute
monitored phone call per week. {Id. at ^ 58). In April 2017, his phone privileges were
reduced to one 15-minute monitored call per week. {Id.). Between approximately June
2012 and April 2017, Plaintiff was allowed "out-of-cell time" for a maximum oftwo hours

per week, during which he was placed in a restraint chair and permitted to watch a video.
{Id. at T|59). Plaintiffs ability to participate in out-of-cell time was terminated in April
2017 without explanation. {Id.).

Plaintiff is now 76 years old and his health is poor. {Id. at

2,61). He is confined

to a wheelchair and suffers from muscle atrophy in his hands and legs, as well as a spinal
condition. {Id. at

61-62). Plaintiff takes more than 19 medications daily and has had

surgeries on his neck, elbows, and left foot, and has "great difficulty moving his
wheelchair." {Id. at T|64). Plaintiffis required to wear a helmet due to seizures, has arthritis

in both hands and carpal tunnel syndrome in his wrists, has sores on his body due to his
sedentary condition, and requires the use of a back brace. {Id. at

65-68). Plaintiff is

severely depressed and experiences persistent feelings of hopelessness, along with a lack
of concentration and forgetftilness. {Id. at ^ 69).
11.

Procedural Background

Plaintiff commenced the instant action on March 30, 2018. (Dkt. 1). Defendants
filed their motion to dismiss on May 22, 2018. (Dkt. 8). Plaintiff filed a response in
opposition on June 18,2018(Dkt. 12), and Defendants filed a reply on June 28,2018(Dkt.
13).

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DISCUSSION

I.

Legal Standard

"In considering a motion to dismiss for failure to state a claim pursuant to Rule
12(b)(6), a district court may consider the facts alleged in the complaint, documents

attached to the complaint as exhibits, and documents incorporated by reference in the
complaint." DiFolco v. MSNBC Cable L.L.C.,622 F.3d 104, 111 (2d Cir. 2010). A court

should consider the motion by "accepting all factual allegations as true and drawing all

reasonable inferences in favor ofthe plaintiff." Trs. of Upstate NY. Eng'rs Pension Fund
V. Ivy Asset Mgmt.,843 F.3d 561, 566(2d Cir. 2016), cert, denied, 137 S. Ct. 2279(2017).

To withstand dismissal, a claimant must set forth "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 plaintiff pleads factual content that allows the court

to draw the reasonable inference that the defendant is liable for the misconduct alleged."
Turkmen v. Ashcroft, 589 F.3d 542,546(2d Cir. 2009)(quoting Ashcroft v. Iqbal, 556 U.S.
662,678(2009)).

"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need

detailed factual allegations, a plaintiffs obligation to provide the grounds of his
entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation

of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (internal
quotations and citations omitted). "To state a plausible claim, the complaint's '[fjactual

allegations must be enough to raise a right to relief above the speculative level.'" Nielsen

V. AECOM Tech. Corp., 762 F.3d 214, 218(2d Cir. 2014)(quoting Twombly, 550 U.S. at
555).
II.

Procedural Due Process Claim

Plaintiffs third cause of action alleges a violation of his right to procedural due

process under the Fourteenth Amendment. (Dkt. 1 at

92-97). In particular, Plaintiff

alleges that Defendants have denied him "meaningful and timely periodic reviews of his
continued long-term and indefinite detention in Ad Seg, and meaningful notice of what he
must do to earn release[.]" (Id. at ^ 93).

"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." Proctor v. LeClaire, 846 F.3d 597, 601 (2d Cir. 2017)(^""Proctor

IF). Accordingly, "[o]nce an inmate has been confined in Ad Seg," it is necessary for

prison officials to "'engage in some sort of periodic review of the confinement' to verify
that the inmate 'remains a security risk' throughout his term." Id. at 609(quoting Hewitt
V. Helms,459 U.S. 460, All n.9(1983)). The Second Circuit has explained:

[MJeaningful periodic reviews of Ad Seg must at least satisfy the following
criteria: 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 pre-ordained outcome is tantamount to no review at all. Second, the
reviewing officials must evaluate whether the justification for Ad Seg exists
at the time ofthe review or will exist in the future, and consider new relevant

evidence as it becomes available.... 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.
Id. at 611 (citation omitted).

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.

Defendants do not argue to the contrary. Instead, they seek to limit Plaintiffs

procedural due process claim in two ways. First, they argue that Plaintiffs challenge to
any reviews occurring before March 30, 2015, is barred by the applicable statute of
limitations. Second,they argue that this Court lacks the authority to order Plaintiffreleased
from administrative segregation and that Plaintiff therefore cannot seek compensatory
damages for the time he claims to have wrongfully been held in isolation.
The Court agrees with Defendants that Plaintiff cannot maintain his procedural due
process claim for any reviews that occurred prior to March 30, 2015. "New York's threeyear statute of limitations for unspecified personal injury actions. New York Civil Practice
Law and Rules § 214(5), governs section 1983 actions in New York." Ormiston v. Nelson,

117 F.3d 69, 71 (2d Cir. 1997). Plaintiffs Complaint was filed on March 30, 2018(Dkt.
1), and so any of his claims that accrued prior to March 30,2015, are time-barred.

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Plaintiff argues that his procedural due process claim is timely as to all of his
reviews because he has pleaded a continuing violation of his constitutional rights. This
argument lacks merit. "The continuing violation doctrine, where applicable, provides an
exception to the normal . . . accrual date" and "applies to claims composed of a series of
separate acts that collectively constitute one unlawful ]practice." Gonzalez v. Hasty,802
[
F.3d 212, 220(2d Cir. 2015)(quotations omitted). Importantly, the continuing violation
doctrine does not apply to "discrete unlawful acts, even where those discrete acts are part
of a serial violation[.]" Id.(quotation omitted). Instead, it applies "to claims that by their
nature accrue only after the plaintiff has been subjected to some threshold amount of
mistreatment." Id.(rejecting application of the continuing violation doctrine to claim by

inmate that he had been housed in the SHU without appropriate review).
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. See Proctor v. LeClaire,

715 F.3d 402, 416 (2d Cir. 2013) {^""Proctor F)(noting that, "[i]n theory," an inmate
confined to administrative segregation could bring an action after each adverse review,
although such seriatim litigation is unlikely in practice). As such, the reviews in question

do not constitute a continuing violation, and Plaintiffs procedural due process claim may
proceed only as to the reviews that occurred within three years of the filing of his

Complaint. See Gonzalez, 802 F.3d at 223-24 ("[A] discrete [due process] claim may
accrue ... each time that a defendant fails to provide an inmate with the notice, hearing,
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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 {National
R.R. Passenger Corp. v. Morgan,536 U.S. 101 (2002)] forecloses the continuing violation
doctrine's application to claims of this nature."); see also J.S. v. Swaha, No. 11 CIV. 103

(NRB),2015 WL 10786859, at *1 (S.D.N.Y. Sept. 11, 2015)("[A] prison administrator's
failure to review an inmate's SHU assignment over a period oftime is considered a series
of discrete acts.")(quotation omitted); Cabassa v. Gummerson, No. 9:01-CV-1039, 2008

WL 4416411, at *8 (N.D.N.Y. Sept. 24, 2008)(finding the continuing violation doctrine
inapplicable to claim that the defendants had retained the plaintiff in administrative
segregation for 161 days without meaningful review); McFadden v. Kralik, No.
04CIV8135RCCJCF, 2007 WL 924464, at *7 (S.D.N.Y. Mar. 28, 2007) (finding the

continuing violation doctrine inapplicable to the plaintiffs claim regarding a "series of

decisions over five years by DOCS to keep him in administrative segregation"). The Court
therefore grants Defendants' motion to dismiss with respect to Plaintiffs procedural due

process claim to the extent it is based on reviews prior to March 30, 2015.^

^

For the reasons discussed in section III of this Decision and Order, the Court finds

that Plaintiffs Eighth Amendment claims are subject to the continuing violation doctrine
and that those claims are contingent on whether, as Plaintiff claims. Defendants pre
ordained that he was to remain in administrative segregation regardless of the outcome of
the periodic reviews. Accordingly, while Plaintiff may not seek damages based on any
reviews that occurred prior to March 30, 2015, he may nonetheless conduct discovery
regarding such reviews and the manner in which they were conducted. Cf. Jute v. Hamilton
Sundstrand Corp., 420 F.3d 166, 176(2d Cir. 2005)(holding that evidence of events that
occurred outside the statute of limitations may be admissible where they constitute
necessary background information).
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Plaintiff cites Edmonson v. Coughlin, 21 F. Supp. 2d 242(W.D.N.Y. 1998)for the
proposition that his procedural due process claims constitute a continuing violation.
However, Edmonson predates the decision in Gonzalez, wherein the Second Circuit

expressly found that procedural due process claims of the nature asserted by Plaintiff in
this case are not subject to the continuing violation doctrine. Accordingly,Edmonson does
not change the Court's conclusions.

With respect to available remedies, the Court is not persuaded by Defendants'
argument that it lacks authority to order that Plaintiff be released from administrative

segregation should this matter ultimately resolve in Plaintiffs favor. While it is true that
this Court cannot "review the substance of Defendants' decision to confine [Plaintiff] in

Ad Seg" or "substitute [its] judgment for Defendants'" as to Plaintiffs dangerousness.
Proctor II, 846 F.3d at 608,the Court nevertheless has "considerable authority to effectuate

its orders and prevent the continuation of unconstitutional conduct proven in the
courtroom[.]" Blake v. Coughlin, No.9:92CV1351,2006 WL 2270383, at *12(N.D.N.Y.
Aug. 8, 2006)(holding that in order to obtain release from administrative segregation, the
plaintiff would have to show that parties before the court had violated his constitutional
right to due process); see also Graham v. Broglin, 922 F.2d 379, 381 (7th Cir. 1991)
(holding that an inmate may use civil rights law to "seek[] a different program or location

or environment . . ., even if, as will usually be the case, the program or location or
environment he is challenging is more restrictive than the alternative he seeks"). To be

clear,the Court is not reaching a finding that release from administrative segregation would
necessarily be the appropriate remedy in this case. However,the Court rejects Defendants'
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argument that it lacks the authority to order that Plaintiff be moved from administrative

segregation into a less restrictive environment. Moreover, because Defendants' argument
regarding compensatory damages is contingent on its argument that the Court lacks the
authority to order Plaintiff released from administrative segregation, it also fails.
Accordingly, the Court will not dismiss Plaintiffs request for release from administrative

segregation or his claim for compensatory damages at this juncture.
III.

Eighth Amendment Claims

Plaintiffs first two causes ofaction allege violations ofhis Eighth Amendment right
to be free from cruel and unusual punishment. In particular. Plaintiffs first cause ofaction

alleges that his "prolonged isolated confinement" has deprived him of"life's necessities"
and caused him "serious psychological pain and serious physical injury." (Dkt 1,

80-88).

Plaintiffs second cause of action alleges that his "prolonged isolated confinement" serves
"no legitimate penological interest" and thus represents a "disproportionate punishment."
{Id. at

89-91). Defendants seek dismissal of these claims, arguing that Plaintiff has

alleged only that he has been subject to the standard conditions of administrative

segregation and that, without more, this is insufficient to support an Eighth Amendment
claim. (Dkt. 8-1 at 5-7). For the reasons set forth below, the Court finds that Plaintiffs

Eighth Amendment claims are not subject to dismissal at this time.

"The Constitution does not mandate comfortable prisons, but neither does it permit
inhumane ones, and it is now settled that the treatment a prisoner receives in prison and the
conditions under which he is confined are subject to scrutiny under the Eighth

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Amendment." Farmer v. Brennan, 511 U.S. 825, 832 (1994)(quotations and citations
omitted). As the Second Circuit has explained:
To demonstrate that the conditions of his confinement constitute cruel and

unusual punishment, the plaintiff must satisfy both an objective test and a
subjective test. First,the plaintiff must demonstrate that the conditions of his
confinement result in unquestioned and serious deprivations of basic human
needs. Second, the plaintiff must demonstrate that the defendants imposed
those conditions with deliberate indifference.

Jolly V. Coughlin,16 F.3d 468,480(2d Cir. 1996)(quotations and citations omitted). "The

Second Circuit, in addressing the needs protected by the Eighth Amendment, has stated
that sentenced prisoners are entitled to 'adequate food,clothing, shelter, sanitation, medical
care and personal safety.'" Walker v. Bellnier, No. 917CV1008GTSCFH, 2017 WL

5135702, at *9(N.D.N.Y. Nov. 3, 2017)(quoting Wolfish v. Levi, 573 F.2d 118, 125 (2d
Cir. 1978)).

Courts in this Circuit have held that that as a general rule, "administrative

segregation conditions, even though restrictive and harsh, are insufficient to establish
Eighth Amendment violations because they are part ofthe penalty that criminal offenders
pay for their offenses against society." Tavares v. Amato,954 F. Supp.2d 79,92(N.D.N.Y.
2013)(quotations and alterations omitted). However, courts are also cognizant that "the
deleterious effects of isolated housing on inmates—especially to those assigned to long-

term solitary confinement—are well-known and amply documented," including the fact

that prolonged solitary confinement"can and does lead to significant psychological harm."
Peoples V. Annucci, 180 F. Supp. 3d 294, 299(S.D.N.Y. 2016). Accordingly, courts have

found Eighth Amendment violations where inmates are held in solitary confinement for

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extended periods oftime,such that the effects are "grossly disproportionate" to the reasons
for the isolation. Peoples v. Fischer, 898 F. Supp. 2d 618,621 (S.D.N.Y. 2012); see also
Shoatz V. Wetzel, No. 2:13-CV-0657, 2014 WL 294988, at *2-3(W.D. Pa. Jan. 27, 2014)

(denying motion to dismiss Eighth Amendment claim brought by a plaintiff who had been
held in solitary confinement for "over twenty-two consecutive years" because "[t]he
duration of Plaintiffs solitary confinement has continued for a sufficient length of time

that relief on his Eighth Amendment claim is plausible"); Silverstein v. Fed. Bureau of

Prisons, 704 F. Supp. 2d 1077, 1098 (D. Colo. 2010)(denying motion to dismiss Eighth
Amendment claim where the plaintiff, who had murdered two inmates and a corrections
officer, had been held in solitary confinement for more than twenty years).
Defendants argue that Plaintiffs Eighth Amendment claims must be dismissed
because the Court cannot second-guess Defendants' determination that Plaintiff is

dangerous and that his prolonged confinement in administrative segregation is therefore

penologically justified. The Court is not persuaded. While the initial 1996 determination
that Plaintiff should be confined to administrative segregation, which was upheld by the

Appellate Division, is unreviewable by this Court, Plaintiff alleges that since that time
Defendants have failed to perform a single meaningful review ofhis status, but have instead

pre-ordained that he shall remain in administrative segregation regardless of any new
evidence or changed circumstances. Treating these allegations as true (as the Court must

at this stage of the proceedings). Plaintiff has adequately alleged that his long-term
isolation has been imposed not for legitimate penological purposes, but solely for the

purpose of inflicting harm upon him. Moreover, the Court cannot impermissibly second- 14-

guess a determination ofdangerousness by Defendants where Defendants have not actually
made any such determination but have instead merely gone through the motions to reach a
pre-ordained conclusion. In other words, Plaintiffs Eighth Amendment claims are
intertwined with his procedural due process claims—if Defendants have failed to provide

any meaningful review of Plaintiffs 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. On the other
hand, if Defendants have appropriately reviewed Plaintiffs status and have reached the

conclusion that Plaintiff cannot be released from administrative segregation for reasons of
institutional safety. Plaintiff cannot succeed on either of his claims. Accordingly, because
the viability of Plaintiffs Eighth Amendment claims turns on issues of fact. Defendants'
motion to dismiss these claims is denied.

The Court further finds that, unlike his procedural due process claim. Plaintiffs
Eighth Amendment claims state a continuing violation, because they did not accrue until
sufficient time had passed to render Plaintiffs continued confinement cruel and unusual.

See Gonzalez, 802 F.3d at 224 ("An Eighth Amendment claim predicated on SHU
confinement. .. typically accrues only after an inmate has been confined in the SHU for
a prolonged period oftime.... [The plaintiffs Eighth Amendment] claim as he has pled
it, assuming it otherwise is viable, accrued only after the defendants had confined him in
the SHU for some threshold period of time. This renders the continuing violation doctrine

applicable."). Accordingly, Plaintiffs Eighth Amendment claims are not time-barred,
even with respect to events occurring before March 30, 2015.
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Defendants also argue that they are entitled to qualified immunity with respect to
Plaintiffs Eighth Amendment claims. "Qualified immunity shields government officials
from civil damages liability unless the official violated a statutory or constitutional right
that was clearly established at the time of the challenged conduct." Reichle v. Howards,
566 U.S. 658, 664 (2012) "A right is 'clearly established' if 'it would be clear to a
reasonable officer that his conduct was unlawful in the situation he confronted.'" Beckles

V. City ofN.Y., 492 F. App'x 181, 182(2d Cir. 2012)(quoting Saucier v. Katz, 533 U.S.
194,202(2001)). Here,the Court finds that there are issues offact regarding Defendants'
entitlement to qualified immunity. "Numerous courts have found that long stretches of
segregation can constitute cruel and unusual punishment." Fischer, 898 F. Supp. 2d at

625-26. 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 Shoatz v. Wetzel, No. 2;13-CV-0657, 2016 WL
595337,at *12(W.D.Pa.Feb. 12,2016^(denying motion for summaryjudgment on Eighth
Amendment claims on basis of qualified immunity and noting that "in 1978, the Supreme
Court stated that '[cjonfmement in a prison or in an isolation cell is a form of punishment
subject to scrutiny under Eighth Amendment standards'" (quoting Hutto v. Finney, 437
U.S. 678,685 (1978))).
IV.

Substantive Due Process Claim

Plaintiffs fourth cause of action alleges a violation of his Fourteenth Amendment

right to substantive due process, on the basis that Defendants have predetermined he will
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stay in administrative segregation, thereby "rendering the periodic reviews substantively
meaningless." (Dkt. 1 at

98-100). Defendants seek dismissal of this cause of action,

arguing that it is "subsumed by the Eighth Amendment claims" and that Plaintiff has "not
pled a condition which is arbitrary, conscience-shocking, or oppressive in a constitutional
sense as required to state a claim under the Fourteenth Amendment." (Dkt. 8-1 at 5-6)

(quotation omitted). For the reasons discussed below, the Court agrees that Plaintiff has
failed to plead a viable substantive due process claim.

"[W]here another provision of the Constitution provides an explicit textual source
of constitutional protection, a court must assess a plaintiffs claims under that explicit
provision and not the more generalized notion of substantive due process." Kia P. v.
Mclntyre, 235 F.3d 749, 757-58 (2d Cir. 2000)(quotations omitted). The only allegedly
shocking behavior in this case is Defendants' confinement of Plaintiff in administrative
segregation without penological justification. "In other words, what would serve to raise
[Defendants'] actions beyond the wrongful to the unconscionable and shocking are facts

which,ifproven, would constitute, in themselves,specific constitutional violations." Velez
V. Levy,401 F.3d 75,94(2d Cir. 2005). Under these circumstances. Plaintiffs substantive
due process claim is "subsumed in [his] more particularized allegations," and subject to
dismissal. Id.', see also Proctor v. LeClaire, No.909CV1114GLSDEP,2017 WL 3396538,

at *3 (N.D.N.Y. Aug. 8, 2017) (dismissing substantive due process claim based on
prolonged confinement in administrative segregation because the plaintiff was

"packag[ing] arguments that should be directed at procedural due process and Eighth
Amendment claims into a claim based on a violation of substantive due process; simply
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stated, these assertions do not fit the elaim before the court").

The Court grants

Defendants' motion to dismiss with respect to Plaintiffs fourth cause of action.
CONCLUSION

For the reasons set forth above, Defendants' motion to dismiss (Dkt. 8) is granted
with respect to Plaintiffs procedural due process elaim (Plaintiffs third cause of action)
solely to the extent it is based on reviews that occurred prior to March 30, 2015, and with
respect to Plaintiffs substantive due process elaim (Plaintiffs fourth cause of action) in its

entirety. Defendants' motion is denied in all other respects.
SO ORDERED.

ELIZAMTH Af WOLI

United^tates District Judge
Dated: February 11, 2019
Rochester, New York

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