Arce v. Walker

• Decision Date: 18 March 1998
• Docket Number: Docket No. 96-2012
• Parties: George ARCE, Plaintiff-Appellant, v. Hans G. WALKER, Walter R. Kelly, Albert Hall, Robert Bathrick, Gregory Kadien, Donald LeBaron, John E. Morse, Sgt. D. Richardson, David Odachowski, Ronald L. Bish, D. Pirrami, Kenneth J. Berbary, Robert Reyes, Bryan A. Clark, Daniel Morgan, Robert Davis, And David Bates, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

Page 329

139 F.3d 329

George ARCE, Plaintiff-Appellant, v. Hans G. WALKER, Walter R. Kelly, Albert Hall, Robert Bathrick, Gregory Kadien, Donald LeBaron, John E. Morse Sgt. D. Richardson, David Odachowski, Ronald L. Bish, D Pirrami, Kenneth J. Berbary, Robert Reyes, Bryan A. Clark Daniel Morgan, Robert Davis, And David Bates, Defendants-Appellees.

Docket No. 96-2012.

United States Court of Appeals Second Circuit.

Argued Sept. 22, 1997.

Decided March 18, 1998.

Frederick H. Cohn, New York City (Mark A. Simko, New York City, of counsel), for Appellant.

Martin A. Hotvet, Assistant Attorney General, State of New York (Dennis C. Vacco, Attorney General, Peter H. Schiff, Deputy Solicitor General, Peter G. Crary, Assistant Attorney General, State of New York, Albany, NY, of counsel), for Appellees.

Before: OAKES, MESKILL and CALABRESI, Circuit Judges.

MESKILL, Circuit Judge:

Plaintiff-Appellant George Arce, a state prison inmate, appeals from an order of the United States District Court for the Western District of New York, Larimer, J., denying his motion for summary judgment, granting defendants-appellees prison officials' ¹ cross-motion for summary judgment, and dismissing the entire complaint with prejudice. For the reasons set forth below, the district court's grant of summary judgment in favor of the prison officials is affirmed. Because, however, the district court pretermitted several claims in the complaint, we vacate the district court's order dismissing the complaint with prejudice. We remand to the district court for further proceedings on Arce's claims for violation of his constitutional right of access to the courts.

BACKGROUND

In March 1986, Arce was an inmate at Attica Correctional Facility (Attica) serving a prison term of 25 years to life. Arce alleged that several Attica correction officers abused and threatened him during that time. Arce was thereafter transferred out of Attica and he filed a civil rights lawsuit against the Attica correction officers who allegedly had abused him. On December 22, 1986, Arce, then an inmate at Clinton Correctional Facility (Clinton), was transferred back to Attica temporarily to attend court proceedings in that lawsuit.

Arce arrived at Clinton on December 22 at 7:35 p.m. He was classified as a "holdover" inmate and placed in Attica's Special Housing Unit (SHU) on a gallery that housed Involuntary Protective Custody inmates. Inmates are classified as "holdovers" when they are temporarily transferred from one correctional facility to another to attend court proceedings. They are segregated from the general population because prison officials at the receiving facility have insufficient information to assess whether the inmate may be housed safely with the general population. "Holdover" inmates, under then-existing New York prison regulations, were classified as "automatic admission" into the SHU. ²

On January 5, 1987 at 7:52 a.m., Arce left his cell to attend his court proceedings and returned to Attica at 2:10 p.m. On January 8, 1987, at 7:40 a.m., Arce was put on a bus to return to Clinton. In total, there were 18 days during which, in whole or in part, Arce was housed in the SHU. During that time, prison officials did not allow Arce to attend On October 11, 1989, Arce filed a pro se complaint in the district court. On November 1, 1993, Arce, with the assistance of appointed counsel, filed an amended complaint. The amended complaint, brought pursuant to 42 U.S.C. § 1983, alleged three violations of Arce's constitutional rights during his temporary confinement at Attica:

communal religious services and only provided two hours of out-of-cell exercise on one day, December 28, 1996. ³

(1) prison officials violated Arce's liberty interests arising under the Fourteenth Amendment Due Process Clause and state law without due process of law by (a) confining him in administrative segregation for 18 days; (b) depriving him of access to communal religious services; (c) failing to provide him with daily, out-of-cell exercise; and (d) restricting his freedom of movement.

(2) the restrictions on his freedom of movement in conjunction with the deprivation of exercise and access to communal religious services during the 18 day segregation violated Arce's Eighth Amendment rights; and

(3) prison officials violated Arce's constitutional right of access to the courts by (a) destroying his legal documents and (b) by engaging in other abusive acts in retaliation for Arce's pending civil rights lawsuit against several Attica correction officers and officials. ⁴

On July 13, 1995, Arce moved for partial summary judgment on the following claims: (1) that the administrative segregation violated his liberty interests arising under the Fourteenth Amendment Due Process Clause; (2) that the deprivation of daily exercise and harassment during the 18 day segregation violated his liberty interests arising under state law; and (3) the deprivation of exercise violated the Eighth Amendment. On October 2, 1995 the prison officials filed a cross-motion for summary judgment opposing Arce's three claims. The prison officials argued, among other things, that Arce had been offered, but refused, the opportunity to exercise. Moreover, the prison officials contended that, even stipulating to the truth of Arce's allegations, they were entitled to summary judgment. They also argued that because Arce had moved for summary judgment on just a fraction of his myriad claims, the remainder should be deemed abandoned.

On November 27, 1995 the district court denied Arce's motion for summary judgment and granted the prison officials' cross-motion for summary judgment. The district court concluded that Arce's segregation had not deprived him of a liberty interest arising under the Fourteenth Amendment Due Process Clause. The district court also concluded that under Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), Arce failed to demonstrate that his administrative segregation, aggravated by the deprivation of out-of-cell exercise and verbal harassment, amounted to an "atypical and significant hardship" so as to implicate a liberty interest arising under state law. ⁵

Moreover, the court concluded that depriving Arce of out-of-cell exercise during his segregation did not violate the Eighth Amendment's prohibition against cruel and unusual punishment. Without addressing a number of additional claims on the face of the complaint, including claims that Arce's constitutional right of access to the courts had been violated, the district court dismissed the entire complaint with prejudice.

Arce filed a timely notice of appeal on December 28, 1995. On January 29, 1997 we granted Arce's motion for assignment of counsel. We also ordered Arce to address on appeal whether the district court had erred in dismissing Arce's claims for violation of his right of access to the courts.

On appeal, Arce argues that the district court erred in several respects. Arce argues that the district court wrongfully relied on Sandin, where the Supreme Court considered an inmate's challenge to the lawfulness of his disciplinary segregation, to conclude that Arce's administrative segregation did not implicate liberty interests arising under state law. Arce also argues that the district court did not articulate sufficiently the factual predicates for its conclusion that the conditions of Arce's segregation did not affect a state-created liberty interest. Furthermore, Arce argues that the district court erroneously concluded that his 18 day segregation, aggravated by, among other things, a deprivation of daily exercise and access to communal religious services, did not impose an "atypical and significant hardship" so as to implicate a state-created liberty interest. Arce finally argues that the complaint was improperly dismissed with prejudice because the district court failed to review the claims alleging the violation of his constitutional right of access to the courts.

We discuss Arce's arguments below. As background to our discussion, we briefly examine the established sources of liberty interests for prison inmates.

DISCUSSION

To articulate a claim under 42 U.S.C. § 1983 alleging the violation of a liberty interest without procedural due process, an inmate must first establish that he enjoyed a protected liberty interest. See Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 1908, 104 L.Ed.2d 506 (1989). Inmates' liberty interests are typically derived from two sources, the Fourteenth Amendment Due Process Clause and state statutes or regulations. Id. With respect to interests arising directly under the Due Process Clause, the Supreme Court has narrowly circumscribed its scope to protect no more than the "the most basic liberty interests in prisoners." Hewitt v. Helms, 459 U.S. 460, 467, 103 S.Ct. 864, 869, 74 L.Ed.2d 675 (1983); Wolff v. McDonnell, 418 U.S. 539, 555, 94 S.Ct. 2963, 2974, 41 L.Ed.2d 935 (1974) ("Lawful imprisonment necessarily makes unavailable many rights and privileges of the ordinary citizen."). The Due Process Clause does not protect against "every change in the conditions of confinement having a substantial adverse impact" on inmates, Sandin, 515 U.S. at 478, 115 S.Ct. at 2297, if those changes are " 'within the normal limits or range of custody which the conviction has authorized the State to impose,' " id. (quoting Meachum v. Fano, 427 U.S. 215, 225, 96 S.Ct. 2532, 2538, 49 L.Ed.2d 451 (1976)). Instead, the Due Process Clause protects against restraints or conditions of confinement that "exceed[ ] the sentence in ... an unexpected manner." Sandin, 515 U.S. at 484, 115 S.Ct. at 2300; see id. at 479 n. 4, 115 S.Ct. at 2297 n. 4 (observing that proscribed conditions of confinement must be "qualitatively different from the Aside from the Fourteenth Amendment Due Process Clause, state statutes and regulations may also confer liberty interests on prisoners....