Colon v. Howard

• Decision Date: 02 December 1999
• Docket Number: Docket No. 97-2206
• Citation: 215 F.3d 227
• Parties: (2nd Cir. 2000) ARMANDO COLON, Plaintiff-Appellant, v. THOMAS HOWARD, individually and in his official capacity as Hearing Officer at Clinton Correctional Facility; GARY R. BEZIO, individually and in his official capacity, JEFF WHITE, Corrections Officer at Clinton Correctional Facility; MARK CARTER, Corrections Officer at Clinton Correctional Facility, Defendants-Appellees. August Term 1999 Argued:
• Court: U.S. Court of Appeals — Second Circuit

Page 227

215 F.3d 227 (2nd Cir. 2000)

ARMANDO COLON, Plaintiff-Appellant, v. THOMAS HOWARD, individually and in his official capacity as Hearing Officer at Clinton Correctional Facility; GARY R. BEZIO, individually and in his official capacity, JEFF WHITE, Corrections Officer at Clinton Correctional Facility; MARK CARTER, Corrections Officer at Clinton Correctional Facility, Defendants-Appellees.

Docket No. 97-2206

August Term 1999

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: December 2, 1999

Decided: June 08, 2000

Appeal from the March 25, 1997, judgment of the United States District Court for the Northern District of New York (Neal P. McCurn, Judge) rejecting, as a matter of law, prisoner's procedural due process claim for lack of "atypical" confinement under Sandin v. Conner, 515 U.S. 472 (1995), and dismissing prisoner's retaliation claim after adverse jury verdict.

Dismissal of retaliation claim affirmed; dismissal of procedural due process claim vacated and remanded.

Emma E. Harzem, New York, N.Y. (Arthur S. Linker, Rosenman & Colin, New York, N.Y., on the brief), for plaintiff-appellant.

Martin A. Hotvet, Asst. Atty. General (Eliot Spitzer, N.Y. State Atty. General, Peter H. Schiff, Deputy Solicitor General, Nancy A. Spiegel, Asst. Atty. General, Albany, N.Y., on the brief), for defendants-appellees.

Before: NEWMAN, WALKER, and SACK, Circuit Judges.

Judge Walker and Judge Sack concur with separate opinions.

JON O. NEWMAN, Circuit Judge.

This appeal is one in a series of cases in which district courts in this Circuit have rejected a prisoner's claim that he was confined in a segregated housing unit ("SHU") after a hearing that lacked procedural due process. The primary issue in such cases is whether the confinement imposes an "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life," Sandin v. Conner, 515 U.S. 472, 484 (1995).

Armando Colon, a New York prison inmate, appeals from the March 25, 1997, judgment of the United States District Court for the Northern District of New York (Neil J. McCurn, District Judge) dismissing his claims against state corrections officials. The District Court ruled as a matter of law that the disciplinary hearing that resulted in Colon's SHU confinement for 305 days did not require procedural due process protections. A jury found against Colon on his claim that prison officials had planted contraband in his cell in retaliation for his filing lawsuits. We conclude that Colon's 305 days of SHU confinement was "atypical" and a "severe hardship" within the meaning of Sandin. We reject Colon's claim that he is entitled to a new trial on his retaliation claim because of the admission into evidence of his prison disciplinary record. Accordingly, we affirm in part, vacate in part, and remand.

Background

The disciplinary violation and hearing. Colon was incarcerated at the Clinton Correctional Facility ("Clinton"). On February 1, 1990, he went from his cell to keep a doctor's appointment. After examination at the doctor's office, Colon was sent to a mental health unit at Clinton. On the following day, while confined in the mental health unit, he was informed that Correctional Officer Carter had searched his cell and found two marijuana cigarettes and a "shank" (a homemade knife). An Inmate Misbehavior Report charged Colon with violating prison disciplinary rules concerning weapons and drugs.

A "Tier III" disciplinary hearing was held on February 5, 1990, before Hearing Officer Howard.¹ Colon testified that Carter had planted the contraband in retaliation for lawsuits Colon had previously filed against prison officials. To support his claim, he presented testimony from another inmate that Colon's cell looked like it had not been searched, and testimony from another inmate that Carter was carrying a shank prior to the search. Howard refused to allow Colon to question Carter about the reason for the search. Howard found Colon guilty of the charges and imposed punishment of 360 days in the SHU. The decision was affirmed upon administrative review.

In August 1990, Colon was transferred from Clinton to Attica, where his SHU confinement continued. He was returned to general population after serving 305 days in the SHU.

Initial District Court proceedings and first appeal. Colon filed the instant lawsuit under 42 U.S.C. § 1983, alleging that the contraband had been planted in his cell in retaliation for his prior lawsuits and that he had been denied a fair hearing. The suit was initially dismissed on the ground of collateral estoppel arising from an Article 78 proceeding in state court. Upon a prior appeal, we reversed in part, holding that a collateral estoppel bar did not arise from either the Article 78 proceeding or the Tier III disciplinary proceeding. See Colon v. Coughlin, 58 F.3d 865, 869-71 (2d Cir. 1995) ("Colon I").²

Proceedings in the District Court on remand. On remand, the District Court appointed pro bono counsel for Colon. The case proceeded to a jury trial before Judge McCurn on retaliation and Eighth Amendment claims against all defendants, and on procedural due process claims against Howard and Selsky. The Eighth Amendment claims were based on the conditions under which Colon was held for the eight days prior to and immediately after the hearing.

At the close of Colon's evidence, Judge McCurn granted McCormick's and Selsky's motions for judgment as a matter of law (JMOL) for lack of evidence showing their involvement.

At the close of all the evidence, Judge McCurn granted all defendants' motions for JMOL on the Eighth Amendment claims on two grounds: (1) that the conditions did not rise to an Eighth Amendment deprivation; and (2) that the claims were not raised until trial, thus denying the defendants discovery. Judge McCurn granted Howard's motion for JMOL on the retaliation claim for lack of personal involvement. He granted Howard's motion for JMOL on the procedural due process claim, ruling that the duration and conditions of the SHU confinement was not "atypical" under Sandin.

The remaining claims for retaliation against Bezio, Carter, White, and Costello went to the jury, which returned a verdict in their favor. Based on the District Judge's rulings and the jury's verdict, judgment was entered for all defendants.

Discussion

I. Procedural Due Process Claim

In Sandin, the Supreme Court ruled that the Constitution did not require that restrictive confinement within a prison be preceded by procedural due process protections unless the confinement subjected the prisoner to "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." 515 U.S. at 484. The Court ruled that the conditions of Sandin's confinement--placement in a special housing unit for 30 days--did not meet the newly announced standard of "atypicality." Since Sandin, considerable litigation has ensued on the issue of what duration and conditions of restricted confinement within a prison meet the Sandin standard. In cases dismissing Sandin claims before trial on defendants' motions for summary judgment, we have remanded for amplification of the record and more refined fact-finding. See, e.g., Welch v. Bartlett, 196 F.3d 389, 393-95 (2d Cir. 1999); Brooks v. DiFasi, 112 F.3d 46, 49 (2d Cir. 1997); Miller v. Selsky, 111 F.3d 7, 9 (2d Cir. 1997). This case, however, comes before us after the Sandin issue has been fully tried, with the prisoner represented by appointed counsel.

The evidence concerning the conditions and duration of Colon's SHU confinement was undisputed. The conditions were the normal conditions of SHU confinement in New York. See N.Y. Comp. Codes R. & Regs. tit. 7, §§ 304.1-.14 (1999). Colon was 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 were permitted, but the frequency and duration was less than in general population. The number of books allowed in the cell was also limited. As to duration, Colon was required to serve 305 days of the 360-day sentence imposed.

"The content of the Sandin standard of 'atypical and significant hardship' is an issue of law, but if the facts concerning the conditions or the duration of confinement are reasonably in dispute, the jury (where one is claimed) must resolve those disputes and then apply the law of atypicality, as instructed by the Court." Sealey v. Giltner, 197 F.3d 578, 585 (2d Cir. 1999). With the facts as to conditions and duration undisputed, it was appropriate for Judge McCurn to decide the Sandin issue as a matter of law.³ In ruling that Colon's SHU confinement was not atypical, he stated:

[T]here's no proof in front of me that that confinement, and there was testimony as to what went on in the confinement, was any different than the ordinary SHU confinement. And the deprivation which occurred in that confinement such as restricted move[ment] for one hour a day of exercise, lack of package facilities, lack of some commissary facilities, inability to carry out a job in the prison system, et cetera, loss of educational opportunities have been held time and time again in the second circuit [and] throughout the country not to amount to constitutional deprivation. The fact that he was confined for 300 days out of 360, in and of itself, is not atypical.

There are several cases, I won't bother citing them here now, upheld that although there's no bright line, confinement in SHU up to 360 days has been held in this district and is not a basis for due process liability [as] such. So, therefore, the claim against him for due process violation under Sandin has not been sustained.

We disagree with this ruling. This Court has not ruled that an SHU confinement...