Wright v. Coughlin

• Decision Date: 05 January 1998
• Docket Number: No. 96-2276,96-2276
• Citation: 132 F.3d 133
• Parties: Thomas WRIGHT, Plaintiff-Appellant, v. Thomas A. COUGHLIN, III, Commissioner, Department of Correctional Services; Donald Selsky, Deputy Commissioner, Special Housing and Discipline, Department of Correctional Services; Bennedict, Captain, Hearing Officer, Attica Correctional Facility; Walter Kelly, Superintendent, Attica Correctional Facility; J. Kihl, Hearing Officer, Attica Correctional Facility, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

Page 133

132 F.3d 133

Thomas WRIGHT, Plaintiff-Appellant, v. Thomas A. COUGHLIN, III, Commissioner, Department of Correctional Services; Donald Selsky, Deputy Commissioner Special Housing and Discipline, Department of Correctional Services; Bennedict, Captain, Hearing Officer, Attica Correctional Facility; Walter Kelly, Superintendent, Attica Correctional Facility; J. Kihl, Hearing Officer, Attica Correctional Facility, Defendants-Appellees.

No. 96-2276.

United States Court of Appeals, Second Circuit.

Submitted Nov. 26, 1997.

Decided Jan. 5, 1998.

Thomas Wright, pro se, Fallsburg, NY.

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

Before: WALKER, Jr., LEVAL, Circuit Judges, and STANTON, District Judge. ^*

JOHN M. WALKER Jr., Circuit Judge:

Thomas Wright, ("Wright") a prisoner, appeals from a judgment of the United States District Court for the Western District of New York (Leslie G. Foschio, Magistrate Judge ), that denied his motion to reconsider the district court's judgment dismissing his claims as to two defendants and granting summary judgment to another. Wright sued employees of the New York Department of Correctional Services ("DOCS") for violating his constitutional rights, pursuant to 42 U.S.C. § 1983. He alleged that various DOCS officials had deprived him of due process of law in connection with prison disciplinary proceedings following a prison riot that led to a period of disciplinary confinement at the Attica Correctional Facility ("Attica"). The district court dismissed Wright's action against defendants Thomas A. Coughlin, Donald Selsky, Bennedict, and J. Kihl on various grounds including absolute immunity and untimeliness. Wright moved for reconsideration of the district court's dismissal as to defendants Selsky and Kihl in a motion to vacate, pursuant to Fed.R.Civ.P. 60(b), claiming that neither defendant was entitled to absolute immunity. The parties agreed to proceed before Magistrate Judge Foschio. Finding that the disciplinary confinement was not sufficiently "atypical or significant" under Sandin v. Conner, 515 U.S. 472, 482, 115 S.Ct. 2293, 2300, 132 L.Ed.2d 418 (1995), to implicate a protectable liberty interest under the Due Process Clause, Magistrate Judge Foschio denied Wright's motion to vacate the judgment against Selsky and Kihl as "futile" and dismissed plaintiff's complaint against the sole remaining defendant, Kelly.

On appeal, plaintiff asserts that the district court erred in finding as a matter of law that his disciplinary confinement, consisting of 168 days in the Special Housing Unit ("SHU") followed by 120 days in keeplock confinement, was not an "atypical and significant hardship" under Sandin. Plaintiff also argues that the district court should not have granted summary judgment in the face of materially disputed evidentiary issues. We vacate and remand for further proceedings.

I. BACKGROUND

During all times relevant to this appeal, Wright was incarcerated at Attica. On the evening of May 26, 1990, plaintiff was present in a prison recreation yard when a riot broke out. During the riot, prison property was destroyed. After the disturbance subsided, correctional officers served plaintiff with two Inmate Misbehavior Reports charging him with several disciplinary infractions. In the reports, the complaining officers alleged that they observed plaintiff breaking "at least 50 windows" and starting a large fire in the recreation area fueled by several benches and other state property.

On May 31, 1990, defendant Bennedict, a DOCS Hearing Officer, convened a Tier III disciplinary hearing to decide the charges against Wright. A Tier III proceeding can result in the imposition of penalties within a range from minor, such as reprimand or loss of a specified privilege, to severe, such as cell confinement for an unlimited duration and loss of good time. See 7 NYCRR § 254.7. At the hearing Wright was found guilty of rioting, arson, and damaging property. Hearing Officer Bennedict imposed a penalty of 545 days in the SHU, of which 180 days were suspended and 90 days were deferred, and 180 days of loss of good time, as well as loss of telephone and commissary privileges.

Plaintiff filed an administrative appeal claiming that he was denied the right to call relevant witnesses and that Hearing Officer Bennedict failed to examine videotapes of the incident. The penalty was affirmed by defendant Deputy Commissioner Selsky on August 6, 1990.

Plaintiff then challenged the Tier III determination in the New York Supreme Court pursuant to Article 78 of the Civil Practice Law and Rules, claiming that the hearing officer had failed to review relevant evidence, specifically certain videotapes and photographs of the incident. The Supreme Court concluded that the videotapes were relevant evidence which should have been considered by the hearing officer, vacated the penalty, and ordered a new hearing.

At a second Tier III hearing, on June 5, 1991, Hearing Officer Kihl, a defendant in this action, viewed the videotapes of the incident for approximately thirty minutes and found no exculpatory evidence on the tapes. Wright was not permitted to review the tapes simultaneously. Wright requested the testimony of three witnesses to support his defense of innocence, but Kihl allowed only the testimony of one of them, rejecting the testimony of the others as redundant. Wright was found guilty on all charges and given a new sentence of 168 days confinement in the SHU and 120 days in keeplock confinement, a form of administrative segregation in which an inmate is confined to his cell and denied participation in normal prison activities, as well as telephone and commissary privileges.

Wright pursued an administrative appeal from Hearing Officer Kihl's decision which was affirmed by defendant Selsky. Wright then filed a second Article 78 proceeding, claiming that Hearing Officer Kihl was biased and had refused to give him the opportunity to call relevant witnesses in his defense. Agreeing with Wright that "the hearing officer did not conduct the hearing in a fair and impartial manner," and that Wright was denied his right to call witnesses, the New York State Supreme Court vacated this second administrative judgment and directed the defendants to expunge the disciplinary proceedings from Wright's record. The Supreme Court concluded that it would be inappropriate to remand for a new hearing because by the time it had ruled, Wright had completed his sentence, serving a total of 288 days in restrictive confinement.

Wright then filed this action, pursuant to 42 U.S.C. § 1983, seeking monetary damages for an asserted violation of his due process rights under the Fourteenth Amendment. He named as defendants Thomas A. Coughlin, III, the Commissioner of the DOCS and its Chief Executive Officer; Donald Selsky, a DOCS employee and the Deputy Commissioner for special housing; Captain Bennedict, a DOCS officer; Walter Kelly, a DOCS employee and the Superintendent of Attica; and Kihl, a hearing officer at Attica. The district court (William M. Skretny, District Judge ) dismissed Wright's action against Coughlin because he had no personal involvement in the alleged violation, against Selsky and Kihl based on absolute immunity, and against Bennedict as untimely. The plaintiff appealed the dismissals to this court. Finding that a final order had not been issued against all defendants, we dismissed the appeal. In July of 1995, defendant Kelly moved for summary judgment. Soon thereafter, Wright moved, pursuant to Fed.R.Civ.P. 60(b), to vacate the district court's ruling dismissing the complaint against Selsky and Kihl on immunity grounds. The parties agreed to proceed to a final district court determination before Magistrate Judge Foschio, pursuant to 28 U.S.C. § 636(c), with an appeal to be taken directly to the Second Circuit. Subsequently, in a decision and order dated March 18, 1996, Magistrate Judge Foschio held that Wright had not alleged a constitutional violation, granted Kelly's motion for summary judgment, and denied plaintiff's motion to vacate Judge Skretny's order as to Selsky and Kihl.

Wright appeals from that ruling. On appeal, Wright argues that the district court erred in not considering duration as a factor in determining whether his confinement constituted an "atypical and significant" hardship and that the district court improperly credited the testimony of defendant Kelly in granting his summary judgment motion.

II. DISCUSSION

Plaintiff contends that the district court erred in finding as a matter of law that the disciplinary confinement to which he was subject, consisting of 168 days confinement in the SHU and 120 days in keeplock confinement, was not an "atypical and significant hardship" under Sandin v. Conner, 515 U.S. 472, 482, 115 S.Ct. 2293, 2300, 132 L.Ed.2d 418 (1995). In Sandin, the Supreme Court altered the landscape of prisoner due process, constructing a new approach for analyzing claims of prisoners who are segregated from the prison population. To establish a due process violation, it is necessary to prove that the state has created a protected liberty interest and that the process due was denied. See Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 1908, 104 L.Ed.2d 506 (1989); Bedoya v. Coughlin, 91 F.3d 349, 351-52 (2d Cir.1996).

To identify a protectable liberty interest under the Sandin framework, prisoners must establish that a given restraint imposes an "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin, 515 U.S. at 482, 115 S.Ct. at 2300. Sandin articulated relevant factors which courts should evaluate in determining what constitutes an "atypical and significant" ...