Welch v. Bartlett

• Decision Date: 08 November 1999
• Citation: 196 F.3d 389
• Parties: (2nd Cir. 1999) ELBERT WELCH, Plaintiff-Appellant, v. GEORGE BARTLETT, Superintendent; RUPPERT FENNELL, Deputy Superintendent; DANA SMITH, Deputy Superintendent; T. RIBBLE, Correction Officer; R. SEMSKI, Sergeant; S. HAGER, Correction Officer; NITNAUGER, Correction Officer; J. BURGE, Captain, Defendants-Appellees. No: 98-2705
• Court: U.S. Court of Appeals — Second Circuit

Page 389

196 F.3d 389 (2nd Cir. 1999)

ELBERT WELCH, Plaintiff-Appellant, v. GEORGE BARTLETT, Superintendent; RUPPERT FENNELL, Deputy Superintendent; DANA SMITH, Deputy Superintendent; T. RIBBLE, Correction Officer; R. SEMSKI, Sergeant; S. HAGER, Correction Officer; NITNAUGER, Correction Officer; J. BURGE, Captain, Defendants-Appellees.

No: 98-2705

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Submitted March 31, 1999,

Decided September 17, 1999,

Amended November 8, 1999.

Elbert Welch, pro se, Niagara Falls, NY, for Plaintiff-Appellant.

Martin A. Hotvet, Assistant Attorney General, Albany, NY (Dennis C. Vacco, Attorney General of the State of New York, Albany, NY, Peter H. Schiff, Deputy Solicitor General and Nancy A. Spiegel, Assistant Attorney General, Albany, NY), for Defendants-Appellees.

Before: LEVAL and SACK, Circuit Judges, and MORAN, District Judge.^*

LEVAL, Circuit Judge:

Elbert Welch appeals from the judgment of the United States District Court for the Western District of New York (William M. Skretny, District Judge), dismissing his complaint alleging that officials from the New York State Department of Correctional Facilities ("DOCS") deprived him of liberty without due process of law. The district court concluded that the deprivation in question, 90 days in solitary confinement, did not amount to an "atypical and significant hardship . . . in relation to the ordinary incidents of prison life," Sandin v. Conner, 515 U.S. 472, 484, 132 L. Ed. 2d 418, 115 S. Ct. 2293 (1995), and therefore granted summary judgment for the defendants. Because we think the district court's findings do not support this conclusion, we vacate the judgment and remand for further proceedings.

BACKGROUND

At all times relevant to this decision, Welch was an inmate at Elmira Correctional Facility, serving an indeterminate sentence of 12 1/2 to 25 years for murder. On September 26, 1994, corrections officers discovered legal paperwork and headphones belonging to other inmates in Welch's cell. He was charged with violating prison rules that prohibit possession of unauthorized items and provision of legal assistance without permission. Following a disciplinary hearing, Welch was found guilty of both charges and sentenced to 90 days confinement in the Special Housing Unit ("SHU"). He served most of his term in the SHU, and the balance in disciplinary keeplock in a general population cell.

Welch then brought this action under 42 U.S.C. 1983, asserting that he had a right to provide legal assistance to prisoners and that his punishment violated due process of law for various reasons, including that he did not receive proper notice and was judged by a biased hearing officer. See Wolff v. McDonnell, 418 U.S. 539, 563-71, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974). The district court granted defendants' motion for summary judgment, concluding that Welch did not have a right to provide legal assistance to prisoners, and that he did not have a liberty interest in being free from 90 days in the SHU because such confinement was not an "atypical and significant deprivation compared to the ordinary incidents of prison life." Sandin, 515 U.S. at 486. By summary order, we affirmed with respect to Welch's asserted right to provide legal assistance, but vacated and remanded because the court had not made findings as to the nature and duration of Welch's disciplinary confinement compared to the ordinary conditions of prison life. See Welch v. Bartlett, 1997 U.S. App. LEXIS 23954, No. 96-2778, 1997 WL 568660 (2d Cir. Sept. 12, 1997); see also Brooks v. DiFasi, 112 F.3d 46, 49 (2d Cir. 1997) (requiring findings). On remand, the parties submitted affidavits, and defendants again moved for summary judgment on the ground (among others) that 90 days in the SHU was not an "atypical and significant deprivation."

In ruling on whether Welch had suffered an atypical and significant deprivation, the district court relied on information in affidavits submitted by DOCS. Concerning conditions in the SHU, the court recognized that SHU prisoners are "confined in their cells for most of the day" and forbidden to participate in group activities. SHU prisoners can leave their cells "for one hour of exercise per day, for two showers per week, for any legal visits and one non-legal visit per week, and for occasional appointments with medical or other support staff." By contrast, general population prisoners spend about half of each day locked in their cells, and are "let out for educational or vocational programming, counseling and other activities." Regarding these activities, however, the court noted that "not every prisoner participates in such programs and it is not unusual for a prisoner's program to be interrupted at certain times, such as when [the prisoner] transfers to a new facility."

With respect to the duration and frequency of confinement in the SHU, the court noted that out of 215,701 inmates spending time at a DOCS facility between 1991 and 1996, a total of 19,963 were penalized with SHU confinement at least once. Thus, almost 10% of all inmates received SHU punishment. Among the prisoners confined to the SHU, 40% were confined for less than 90 days, and about 60% for 90 days or more.

Based on these facts, the court concluded that a penalty of 90 days in the SHU did not amount to an "atypical and significant hardship in relation to the ordinary incidents of prison life." It reasoned that, while the SHU involved "a degree of deprivation," "all DOCS prisoners suffer some degree of deprivation," and there is "no single deprivation that is unique to SHU." Furthermore, "a significant proportion of DOCS inmates spend at least some time in SHU," and Welch's term was not unusual. The court therefore granted summary judgment for defendants. Welch appealed.

DISCUSSION

In Hewitt v Helms, 459 U.S. 460, 74 L. Ed. 2d 675, 103 S. Ct. 864 (1983), and related cases, the Supreme Court ruled that when a prisoner brings an action under 1983 asserting a due process right that is premised on a state-created liberty interest, the prisoner must establish that the state's laws in fact create such a liberty interest.¹ See Sandin, 515 U.S. at 479-81. The Court instructed that such a liberty interest arises when state statutes or regulations require, in "language of an unmistakably mandatory character," that a prisoner not suffer a particular deprivation absent specified predicates. See Hewitt, 459 U.S. at 471-72.

In Sandin, however, the Court held that a mandatory obligation of prison officials for the prisoner's benefit is insufficient in itself to create a due process right enforceable by an action under 1983. A liberty interest must also be such that its deprivation would subject the prisoner to "atypical and significant hardship . . . in relation to the ordinary incidents of prison life." Sandin, 515 U.S. at 484. Thus, Sandin held that thirty days in punitive solitary confinement did not deprive a Hawaii prisoner of a protected liberty interest, where that term "mirrored those conditions imposed upon inmates in administrative segregation and protective custody," the conditions were "within the [expected] contour of the actual sentence imposed, " id. at 486 & n.9, and the challenged confinement was not significantly onerous compared to the "'lockdown time' even for inmates in the general population." Id. & n.8.

After Sandin, a prisoner who experiences a deprivation arising under mandatory rules has no actionable due process claim if other prisoners experience approximately the same deprivation in the ordinary administration of the prison with sufficient regularity that such deprivation is typical. See, e.g., Frazier v. Coughlin, 81 F.3d 313, 317-18 (2d Cir. 1996). In other words, actions under the Due Process Clause are reserved for prisoners enduring a hardship that is substantially more grave than hardships they would be likely to endure simply as a consequence of the ordinary administration of the prison. Where a statute limits a prison's ability to impose a constraint as a punishment, but the prison makes a practice of imposing for non-punitive reasons a constraint endured under similar conditions and for a similar duration with sufficient regularity, then freedom from the deprivation is not a right of "real substance" which due process protects. See Sandin, 515 U.S. at 478, 480.

The district court reasonably separated the issue of the severity of the deprivation imposed on the plaintiff from its duration. See Arce v. Walker, 139 F.3d 329, 337 (2d Cir. 1998). We believe, however, that the court's analysis was flawed in certain respects.

First, the court apparently assumed that the conditions of confinement for SHU prisoners were not qualitatively different from the conditions endured by general population prisoners when confined to their cells. This assumption was not justified by the record. Welch's affidavit states that conditions of hygiene are far inferior for SHU prisoners than for the general population. He alleges that SHU prisoners, unlike general population, receive inadequate amounts of toilet paper, soap and cleaning materials, a filthy mattress, and infrequent changes of clothes. The affidavit submitted by DOCS did not discuss comparability of these conditions. The court was obligated to accept Welch's allegations for purposes of the motion for summary judgment and could not properly assume the conditions to be equivalent. See Burgio & Campofelice, Inc. v. NYS Dep't of Labor, 107 F.3d 1000, 1005 (2d Cir. 1997). The question of course...