The issue on this appeal is whether placement of a prison inmate in administrative segregation in a Special Housing Unit (SHU) at the Auburn (N.Y.) Correctional Facility (“Auburn”) for an aggregate interval that reached 101 days impairs a liberty interest for which procedural due process must be provided. The appeal also illustrates problems that can arise when liberty interest issues are litigated in a jury trial. Emmeth Sealey appeals from a judgment of the United States District Court for the Northern District of New York (David N. Hurd, Magistrate Judge), that gave judgment as a matter of law to Defendant-Appellee Lt. T.H. Giltner, an Auburn corrections officer, after a jury awarded Sealey $1 nominal damages. Applying the teaching of
Sandin v. Conner,
Background
Sealey’s confinement in the SHU. Sea-ley has been an inmate in the New York state prison system since 1973. At all relevant times he was incarcerated at Auburn. On March 29, 1990, an Auburn inmate was slashed on his face and neck. Sealey was identified as having been involved in the incident. The next day, he was placed in administrative segregation within the Auburn SHU pending a disciplinary hearing on charges of violating rules against fighting, possession of a weapon, and assault. At a disciplinary hearing that concluded on April 9 (all dates are in 1990, unless otherwise noted), Sealey was found not guilty. The next day, while still in the SHU, he was served with an Administrative Segregation Recommendation, which stated:
Based on both confidential and other information] on file in the DSS [Deputy Superintendent for Security] Office, it is felt that your continued presence in general population could seriously jeopardize the safety and security of this facility. The information] on file indicates that you are involved in extortion and strong arm and you are being recommended for placement in Administrative] Segregation.
A hearing on this Recommendation, required by prison regulations, see N.Y. Comp.Codes R. & Regs. tit. 7, § 301.4(a) (1999), was held on April 16. Defendant-Appellee Lt. T.H. Giltner conducted the hearing. He denied Sealey’s request for access to the confidential information on which the Recommendation had been made and refused Sealey’s request to cаll witnesses. Giltner upheld the Recommendation that Sealey remain in administrative segregation because his “presence in general population would pose a threat to the safety and security of the facility.” Id. § 301.4(b).
On June 18, in an administrative appeal, Defendant Donald Selsky, acting director of special housing and inmate discipline, reversed Giltner’s decision, on the ground that Giltner had failed to independently verify the confidential information and should have allowed 'Sealey to call witnesses.
On July 8, Defendant Lt. R. Brimmer conducted another hearing. Brimmer denied Sealey’s request to call witnesses and *581 determined, based on confidential information and Sealey’s history of uncooperative behavior, that Sealey should remain in administrative segregation. Sealey’s confinement in the SHU ended on August 29, when he was transferred to the Shawan-gunk Correctional Facility (“Shawan-gunk”), where he was released into general population. Thereafter, on September 7, in an administrative appeal, Selsky upheld Brimmer’s decision, but on January 23, 1991, reversed Brimmer’s decision.
Thus, Sealey was kept in the Auburn SHU for a period of 153 days, comprising five intervals: 11 days (March 30-April 9) prior to the end of the disciplinary hearing, 7 days (April 10-16) prior to the first administrative segregation hearing, 63 days (April 17-June 18) prior to the reversal of the first administrative segregation decision, 20 days (June 19-July 8) prior to the second administrative segregation hearing, and 52 days (July 9-August 29) from the second hearing to the transfer to Shawangunk.
Conditions in the SHU. Sealey and another witness testified at trial as to the conditions of confinement in the SHU. An inmate is confined to his cell 23 hours per day, can take no more than three showers per week, has limited library privileges and no telephone privileges. 1 There was no quiet bell in the SHU, so it was noisy most of the time. On occasion, inmates threw feces at other inmates.
The pending litigation.
On January 10, 1992, Sealey commenced this action, pursuant to 42 U.S.C. § 1983, asserting a violation of his procedural due process rights. By agreement, the case was assigned to Magistrate Judge Hurd. He initially granted all four defendants’ motions for summary judgment. On appeal to this Court, we affirmed the dismissal as to Defendant Coughlin for lack of personal involvement, and reversed and remandеd with respect to Giltner, Brimmer, and Sel-sky in order to permit development of the facts as to whether the conditions of Sea-ley’s confinement in the SHU were “atypical” within the meaning of
Sandin. See Sealey v. Giltner,
The trial. Magistrate Judge Hurd tried the case with a jury in November 1997. At the close of Sealey’s evidence, the Defendants moved for judgment as a matter of law. Magistrate Judge Hurd reserved decision on their claim that the evidence did not show a deprivation significant enough to constitute a liberty interest, denied their claim that the evidence did not show lack of procedural due process, and dismissed Sealey’s claim against Selsky for lack of a showing that any act by Selsky caused harm to Sealey (Selsky’s affir-mance of Brimmer’s decision to continue Sеaley’s confinement did not occur until after Sealey was transferred).
After the close of all the evidence, the remaining Defendants, Giltner and Brim-mer, renewed their motions to dismiss. The Court responded:
With regard to the motion to dismiss on the basis that the plaintiff was not deprived of a liberty interest, the liberty interest question is a matter of law which will be decided by me. If this was a bench trial, the Court would be inclined to make that decision now and perhaps rule that plaintiff does not have a liberty interest and proceed to dismiss the case in its entirety. However, we do have a jury and the plaintiff has raised some issues to demonstrate that his confinement in SHU was [] atypical. He was confined for 145 days.[ 2 ] The confinement was indefinite duration, which could have lasted much longer and was *582 only ended because he was transferred to another facility. He has testified about feces being thrown, about the excess noise, and the other matters concerning his SHU confinement. Therefore, the question is not clear-cut that he did not have a liberty interest.
The Magistrate Judge added that he was reserving the issue and putting the question to the jury so that there would be both a jury verdict and his decision on the liberty interest to review on appeal. The Court dismissed as a matter of law Sea-ley’s claim for confinement for the intervals while he was awaiting the disciplinary hearing and awaiting the first administrative hearing.
Magistrate Judge Hurd instructed the jury that it was to consider only the SHU confinement between April 16, 1990, the date of the first administrative hearing, and Sealey’s transfer to another facility. He also provided the jury with a verdict form that asked several questions. Recognizing Sealey’s claim that the SHU confinement, though labeled administrative, was in reality disciplinary, the Court instructed the jury on the difference between the two types of confinement and explained the due process procedural requirements of each type.
Though the Magistrate Judge had said that the facts concerning the deprivation of a liberty interest were not “clear-cut,” and that it would be helpful on review to have a jury verdict on the issue in the event that this Court disagreed with any ruling of law he might make, he did not instruct the jury on what constitutes a liberty interest in the prison context, nor frame a jury question asking whether Sealey had been denied a liberty interest. However, the Court alluded to the liberty interest issue in its instruction on actual damages, stating that, in determining the amount of any actual damages, the jury “may take into consideration the [effect] that Mr. Sealey’s confinement in SHU as opposed to the general prison population had on his ability to enjoy life” and that the amount of any actual damages awarded “would be the difference, if any, between [SHU] confinement and the general prison population as it affects the plaintiff.” Sealey’s counsel expressed only “a general objection” to the charge, explicitly declining to make any specific objections.
The jury detеrmined that Sealey’s confinement was administrative, that Giltner (but not Brimmer) denied Sealey procedural due process, and that the violation was not the proximate cause of any actual damages. The jury awarded Sealey $1 in nominal damages.
Post-trial rulings.
After the verdict, Giltner renewed his motion for judgment as a matter of law, and the District Court granted the motion. The Court determined that under
Sandin
Sealey “failed to factually demonstrate that his administrative confinement in SHU was an atypical and significant hardship.”
Sealey v. Coughlin,
Other than the plaintiffs own testimony that he had feces thrown in his face and was unable to concentrate and sleep because of constant noise in SHU, there was no other evidence at trial to support the contention that his confinement in administrative segregation was atypical and a significant hardship. No records, reports, or complaints were filed with the Auburn Correctional Facility verifying plaintiffs allegations of inhuman treatment. Consequently, plaintiffs allegations are unsupported conclusions. Plaintiffs testimony alone, without corroborating evidence, cannot establish a liberty interest. To rule otherwise would allow a plaintiff/inmate to meet the “atypical” hardship threshold by merely testifying about some brutal conditions or treatment in SHU.
Id. at 321 (citation omitted). The Court concluded that the conditions of the SHU are the sort of confinement that Sealey should reasonably anticipate reсeiving at some point in his incarceration. The *583 Court added that the jury’s finding of no actual damages was evidence that Sealey had not suffered any deprivation.
Finally, the Court denied Sealey’s application for attorney’s fees under § 1988.
Discussion
The Supreme Court’s decision in
Sandin
made clear that a prisoner’s restricted confinement within a prison does not give rise to a liberty interest, warranting procedural due process protection, unless the conditions and duration of the prisoner’s confinement “imposef] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.”
Whatever
Sandin
tells us is best understood in the context of what preceded that decision. In
Hewitt v. Helms,
In
Sandin,
the Court revisited
Hewitt
and rejected much of its reasoning. Specifically, the Court rejected the idea that a state’s establishment of a specific substantive predicate for restrictive confinement of a prisoner is sufficient to create a protected liberty interest. Instead, though “reeogniz[ing] that States may under certain circumstances create liberty interests which are protected by the Due Process
*584
Clause,”
Sandin,
It is arguable that
Sandin
abolished the inquiry as to whether a state has established a substantive factual predicate for restrictive confinement and limited the inquiry to whether the conditions of confinement are atypical. The Chief Justice’s opinion for the Court рointed out that the substantive factual predicate inquiry of
Hewitt
creates a disincentive for states to codify their prison management procedures and leads to extensive involvement of federal courts in matters of day-to-day prison management.
See id.
at 482-83,
Also arguable from
Sandin
is the proposition that restricted confinement for administrative reasons can never implicate a protected liberty interest. As we have observed,
“Sandin
may be read as calling into question the continuing viability of our cases holding that New York regulations afford inmates a liberty interest in remaining free from administrative segregation.”
Rodriguez v. Phillips,
We think
Sandin
does not go so far. The Court might have assumed that administrative confinement sometimes will not implicate a liberty interest because it might be imposed without the requirement
*585
that corrections officers find a substantive factual predicate. Thus, in one passage, the Court compared the conditions of Conner’s disciplinary confinement to “similar,
but totally discretionary,
confinement.”
Sandin,
Since Sealey’s administrative confinement occurred after а required factual determination that he posed a threat to prison safety, we must consider whether he was confined to conditions of atypical and significant hardship. We therefore turn to the determination of atypicality.
Initially, we pause to consider the procedural issue of how the issue of San-din atypicality should be handled in a jury trial. The Magistrate Judge stated that he would decide the issue as a matter of law, but would submit the issue to the jury as a precaution so that there would be a verdict in the event that his ruling as a matter of law was rejected on appeal. However, his proposed procedure was not completely implemented. The jury charge did not instruct the jury that an element of the Defendаnts’ liability was a finding that the conditions of Sealey’s confinement were atypical, and the verdict form did not frame a question on this issue. Instead, the issue of atypicality was included, somewhat obliquely, as an aspect of actual damages, with very little indication of the appropriate standard.
We agree with the Magistrate Judge that the ultimate issue of atypicality is one of law, but that does not always mean that it need not be submitted to the jury. 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. In appropriate cases, the trial court might consider submitting interrogatories to the jury and then itself applying the law of atypicality to the facts as found by the jury. In this case, some of the facts about the conditions in the Auburn SHU were in dispute, but the atypicality issue was not explicitly submitted to the jury. The verdict form asked whether the confinement was administrative; if so, whether Giltner denied *586 Sealey procedural due process at the April 16, 1990, hearing; and if so, whether the “violation” was a proximate cause of any actual damages. But there can be no “violation” of procedural due process requirements unless the confinement meets the atypicality standard of Sandin. 4
Nevertheless, the Magistrate Judge’s failure to submit the atypicality issue to the jury as an element of the claimed procedural due process violation does not warrant any relief. The Plaintiff made no objection to a verdict form that framed specific questions for the jury, and Rule 49(a) of the Federal Rules of Civil Procedure specifies that where a special verdict form is used, the omission of any issue waives the right to a jury trial on that issue and permits the court to make a finding.
See Goeken v. Kay,
In finding that Sealey’s confinement was not atypical, the Magistrate Judge erred in his intermediate ruling concerning Sealey’s testimony, though not in his ultimate conclusion. After noting that Sealey’s claim of atypicality was not supported by prison reports or other prisoners’ complaints, the Magistrate Judge ruled that “Plaintiffs testimony alone, without corroborating evidence, cannot establish a liberty interest. To rule otherwise would allow a plaintiffinmate to meet the ‘atypical’ hardship threshold by merely testifying about some brutal conditions or treatment in SHU.”
Sealey,
The unwarranted rejection of Sea-ley’s testimony, without regard to its credibility, does not necessarily warrant further fact-finding, however, unless that testimony, even if credited, would establish confinement in such conditions and for such duration as to satisfy the
Sandin
standard of atypicality. Both the conditions and their duration must be considered,
see Welch v. Bartlett,
In assessing whether Sealey’s confinement was atypical, we are hampered by a less than adequate record, despite our pri- or remand for development of the relevant facts. For example, there is no indication whether SHU confinement in conditions similar to Sealey’s is imposed for administrative reasons in the complete discretion of prison officials, or, if so, how frequently that occurs and for what duration. Nor is there any evidence as to how frequently SHU confinement is imposed for administrative reasons after establishment of a required factual predicate and for what duration.
See Brooks,
Sealey testified that he was confined to his SHU cell for 23 hours a day with one hour out for recreation, he was limited to three showers per week, and he lost various privileges. He described the SHU cells as noisy, much more so than general population cеlls, where, he testified, a “quiet bell” ends the time each day when a prisoner is allowed to “talk out of [his] cell.” He also testified that “a few times” other SHU inmates threw feces at him.
With regard to the durational aspect of the atypicality issue, we must focus only on the interval during which Defendant Giltner is responsible, since, on this appeal, it is his alleged denial of procedural due process for which Sealey seeks reinstatement of the jury’s award of nominal damages. The hearing that' Giltner conducted was held on April 16, 1990. His decision ordering administrative segregation was reversed on June 18, 63 days later. The second hearing (not conducted by Giltner) was held on July 8, 20 days later.
5
Thus, the longest interval
following
Giltner’s hearing, for which he could be responsible, totals 83 days.
6
However, Sealey had been in SHU segregation for 18 days before Giltner’s hearing — 11 days prior to the end of the disciplinary hearing and 7 days prior to Giltner’s administrative hearing. Although the confinement for these 18 days alone is not alleged to have implicated a liberty interest and although Giltner had no responsibility for determining the procedures (or their lack) with respect to such confinement, he nonetheless bears responsibility for the 101-day aggregate of the 83 days of confinement after his hearing and the 18 days that preceded it. Wherever the point is beyond which confinement in harsh conditions constitutes atypicality, a prison official must not be permitted to extend such confinement beyond that point without according procedurаl due process.
7
Prospectively, the entire interval of confinement in harsh conditions prior to a hearing will inform the official’s decision whether to accord procedural due process when finding a factual predicate that state law requires as a condition of restrictive confinement.
See Sandin,
Having examined the conditions and the duration of Sealey’s confinement, we next consider the base against which to make the Sandin comparison of atypicality. Three subsidiary issues arise. First, to what type of confinement is the challenged confinement to be compared? Second, whichever type of confinement is relevant, is the comparison to conditions at the inmate’s prison, all prisons in the state system, or all prisons in the nation? Third, if the conditions of confinement and their duration, in light of the appropriate comparison, are deemed to impose a significant hardship, what base is to be used in determining whether the hardship is imposed so infrequently as to render the challenged confinement atypical?
Uncertainty concerning the first issue stems from ambiguities in the Supreme Court’s opinion in
Sandin.
Though that opinion stated generally that restricted confinement impairing a liberty interest must impose an “atypical and significant hardship” compared to “the ordinary incidents of prison life,”
These various comments in
Sandin
have led to differing views among the federal appellate courts. The Ninth Circuit compares restricted confinement to conditions for the general prison population.
See Keenan v. Hall,
The relevant comparison in this Circuit has not been definitively settled, although our decision in
Brooks
suggests that, in a disciplinary confinement case, a comparison might be made to both conditions in administrative confinement and in the general prison population.
See Brooks,
On the second issue (whether to compare to the inmate’s prison or other prisons), the only Circuit to have explicitly considered the issue is the Seventh Circuit, which has ruled that the comparison is with other prisons in the state where the plaintiff is confined, unless the inmate’s prison is the most secure in the state.
See Wagner,
On the third issue (the relevant base for determining whether the conditions and durations of confinement that constitute severe hardship are imposed with such infrequency as to render the .challenged confinement atypical), courts have provided little illumination, though the significance оf frequency has been noted.
See Welch,
In the pending case, the Plaintiffs and the Defendants’ evidence (a) compared Sealey’s SHU administrative confinement to conditions of general population inmates, (b) provided comparative information only for general population inmates at Auburn, and (c) presented no data concerning the frequency of confinement for durations as long as Sealey’s. Since this is the record made after an opportunity for a full trial, we are limited to it and will therefore compare Sealey’s SHU confinement to the conditions applicable to the general population at Auburn. We acknowledge, however, that conditions of administrative confinement at other New York prisons, as well as the frequency and duration of confinements imposing significant hardships, might well be relevant to an inmate’s liberty claim.
Assessing Sealey’s 101-day confinement in the Auburn SHU (for which Giltner bears responsibility) in light of these principles and with his testimony credited, we agree with the Magistrate Judge that he has not shown confinement of a duration and in such conditions as to meet the
Sandin
standard of atypicahty. The conditions of the Auburn SHU are doubtless unpleasant and somewhat more severe than those of general population, but the degree of incremental harshness, endured for 101 days, is not an “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison
*590
life.”
Sandin,
The judgment of the District Court is affirmed.
Notes
. Minimum conditions of SHU confinement are specified by regulations. See N.Y. Comp. Codes R. & Regs. tit. 7, § 304.1-.14 (1999). The minimum number of showers is two per week. See id. § 304.5(a).
. The Magistrate Judge appears to mean the time in the SHU after the first administrative segregation hearing until the transfer to Sha-wangunk, i.e., not counting the initial days prior to and during the disciplinary hearing.
. We did not resolve the issue in
Rodriguez
because the defendant alleged to have denied procedural due process was entitled to qualified immunity.
See Rodriguez,
. Perhaps the Magistrate Judge thought that a finding of actual damages would be a surrogate for a finding of confinement in atypical conditions. However, the jury, understandably responding to the way the questions were framed, declined to award any actual damages, but nonetheless concluded that a procedural due process violatiоn, warranting nominal damages of $1, had been established.
. Giltner is responsible for this 20-day interval since it is not beyond the interval that a hearing officer would reasonably expect a new hearing to occur after his initial hearing result was set aside. A prolonged interval of confinement after reversal of the result of an initial hearing might be the responsibility of the official who decided to maintain the inmate in such prolonged confinement, awaiting a new hearing.
. Since New York prison regulations require a review of administrative segregation every 30 days (eveiy seven days during the first two months), see N.Y. Comp.Codes R. & Regs. tit. 7, § 301.4(d) (1999), it is arguable that Gilt-ner is responsible for only the first seven days after the hearing, and that responsibility for confinement for a long duration is borne only by the official who, without due process, makes the periodic review decision that continues the confinement beyond the point where the duration of the aggregate confinement and the conditions of that confinement constitute atypicality. Since we conclude that no liberty interest was impaired by the aggregate SHU confinement before and after Giltner’s hearing, we need not decide the significance of whatever periodic administrative review might have occurred.
.For example, if conditions were of sufficient harshness that confinement for 365 days constituted atypicality, an official who held a hearing for a prisoner already confined in such conditions for 364 days would normally have to accord procedural due process before continuing the confinement beyond an aggregate interval of 365 days.