Plaintiff-Appellant Patrick Proctor is an inmate in the custody of the New York State Department of Corrections and Community Supervision (“DOCCS”), serving a sentence of thirty-two-and-one-half years to life for second-degree murder, robbery, and attempted escape. He is confined in the Special Housing Unit (the “SHU”), or, as it is better known, solitary confinement, where he has spent the last twenty-two years. Proctor spent his first nine years in the SHU under Disciplinary Segregation and the last thirteen years and counting under Administrative Segregation. Defendants-Appellees are current and former DOCCS administrators: Lucien J. LeClaire, Jr., a former Deputy Commissioner of DOCCS; Brian Fischer, a former Commissioner of DOCCS; Anthony J. Annucci, the current Acting Commissioner of DOCCS; and Joseph Bellnier, the current Deputy Commissioner of DOCCS (collectively, “Defendants”).
Proctor brings this action under 42 U.S.C. § 1983, alleging that his continuous confinement in the SHU under Administrative Segregation violates his Fourteenth Amendment rights to procedural and sub
We conclude that the record presents triable issues of fact regarding Proctor’s procedural due process claim and that the District Court violated Federal Rule of Civil Procedure 56(f) in awarding summary judgment sua sponte on Proctor’s substantive due process claim. The judgment of the District Court is VACATED and the case is REMANDED for further proceedings.
BACKGROUND
I
A
In the DOCCS system, there are two relevant reasons for prison administrators to send an inmate to the SHU—Disciplin-ary Segregation and Administrative Segregation (“Ad Seg”). Disciplinary Segregation, as its name suggests, is designed to discipline an inmate found guilty of a “Tier III” violation, the most serious of three infraction levels in the DOCCS system. N.Y. Comp. Codes R. & Regs. tit. 7, §§ 270.2, 270.3(a)(3), 301.2. A Disciplinary Segregation term lasts “for a designated period of time as specified by the hearing officer.” Id. § 301.2(a). Once that time elapses, the statute does not empower DOCCS to punish the inmate doubly for the same infraction by imposing further Disciplinary Segregation. See id.
Ad Seg serves a different purpose. As relevant here, Ad Seg removes an inmate from the general population when he “pose[s] a threat to the safety and security of the [prison] facility.” Id. § 301.4(b). Given the importance of that purpose, Ad Seg is flexible and accords DOCCS officials substantial discretion in deciding whether to impose an Ad Seg term. Ad Seg terms are open-ended and do not require that DOCCS predetermine when it will release an inmate—“[a]t any time when deemed appropriate [by DOCCS], an inmate may be evaluated and recommended for return to general population.” Id. § 301.4(e)
There is, however, a constitutional ceiling on that flexibility: To ensure that a state prison facility does not use Ad Seg as a pretext to commit an inmate to the SHU indefinitely, the Due Process Clause of the Fourteenth Amendment mandates that prison officials periodically review whether an inmate continues to pose a threat to the facility.
Hewitt v. Helms,
Section 301.4(d) review, as it manifests itself in this case, is a three-step process.
1
First, a committee commonly referred to
Second, the superintendent forwards the Facility Committee’s report and any written response that the inmate submits to a “Central Office Committee” located at DOCCS headquarters in Albany, New York, for “Central Office Review.” The Central Office Committee, “consisting of a representative from the office of facility operations, a member of [the DOCCS] inspector general’s staff, and an attorney from the office of counsel,” reviews the Facility Committee’s report, develops its own recommendation whether the inmate continues to pose a safety threat to the facility, and forwards the paperwork to the deputy commissioner of DOCCS. Id. § 301.4(d)(3).
Third, the deputy commissioner reviews the two committees’ recommendations, as well as the inmate’s written statement when applicable, and decides whether to continue the inmate in Ad Seg. Id. Once the deputy commissioner makes a final decision, he or she notifies the superintendent of the inmate’s prison facility, who provides written notice to the inmate of the decision and its “reason(s),” and a statement notifying the inmate of his right to submit a written statement in the next section 301.4(d) review. Id. § 301.4(d)(4).
B
Proctor is currently held under Ad Seg in the SHU at the Upstate Correctional Facility. He is serving a state prison term of thirty-two-and-one-half years to life for second-degree murder and attempted escape and is first eligible for parole in 2024. Proctor previously served two other terms in state prison for convictions of, inter alia, burglary, robbery, and assault.
Proctor’s early years in prison (in the 1980s and early 1990s) were marked by violence and dangerous defiance of the law. Proctor stabbed an inmate. He “absconded from a job search from the Edgecombe Correctional Facility.”
Proctor v. Kelly,
No. 9:05-cv-0692,
Proctor’s defiance reached its apex in November 1994, when he and three inmate-accomplices executed an elaborate escape from Shawangunk Correctional Facility, a maximum security facility.
2
DOCCS officials apprehended Proctor after he had been at large for about five hours. Disciplinary proceedings against Proctor for his escape resulted in a sen
Proctor’s behavior in the SHU under Disciplinary Segregation varied. For the first three years of his SHU term, he continued his defiance. Proctor managed to remove his handcuffs without permission while in his cell.
See Proctor I,
On the day he was scheduled to be released from Disciplinary Segregation, DOCCS served Proctor with an “[Ad Seg] Recommendation” and retained him in the SHU.
Proctor I,
Proctor’s behavioral record in Ad Seg has not been spotless. In the first few years, Proctor received “minimal” disciplinary reports for possession of contraband,' lewd exposure, and “unhygienic acts, littering and harassment.” J.A. 334, 348. In the last decade, he has committed two unhygienic acts and possessed one unidentified weapon. At times, he can be argumentative with his fellow Ad Seg inmates.
But in the main, Proctor’s behavior has remained positive. He has gone long stretches—including one period of almost four years—without any disciplinary reports. See J.A. 320-34 (fourteen months without a disciplinary report), 342-91 (almost four years without a disciplinary report), 395-424 (twenty months without a disciplinary report), 429-55 (twenty months without a disciplinary report). Particularly in the last eight years, DOCCS has observed that Proctor has made “an extensive effort to minimize his disciplinary violations.” J.A. 374. He received just one disciplinary report between December 2011 and the close of the record in this case. DOCCS considered Proctor’s attitude “positive,” “co[-]operat[ive],” and “much improved.” J.A. 419, 506.
Defendants have without fail conducted a section 301.4(d) review for Proctor every sixty days he has been in Ad Seg. Each time, the Upstate Corrections Facility Committee (made up of a rotating panel of Upstate Corrections officials) convenes to review Proctor’s institutional record and make a recommendation. That committee forwards Proctor’s paperwork to the Central Office Committee (comprising a rotating panel of officials from DOCCS head
II
The procedural history in this case involves multiple lawsuits and a prior appeal, mostly addressing procedural issues unrelated to our decision today. Much of that history is described in detail in
Proctor v. LeClaire,
Proctor brought his first
pro se
challenge to his Ad Seg commitment in 2005.
Proctor I,
In 2009, Proctor instituted his second
pro se
challenge to his Ad Seg commitment, the action which is ultimate source of this appeal.
Proctor v. LeClaire,
No. 9:09-cv-1114,
On remand, Proctor, still aided by counsel, filed an amended complaint, the pleading in play in this appeal. That complaint added former Commissioner Fischer in his personal capacity and Acting Commissioner Annucci and Deputy Commissioner Bellnier in their personal and official capacities as defendants to this action. Proctor alleges that Defendants denied him procedural due process because none of the section 301.4(d) reviews while he was confined in Ad Seg has been “meaningful.” J.A. 67. Proctor supports his claim by arguing that,
inter alia,
Defendants “justified [his] continued confinement in Ad Seg by citing decades-old incidents, such as the
Proctor also alleges that his confinement in the SHU .for twenty-two uninterrupted years amounts to a deprivation of substantive due process. In light of physical and psychological injuries he claims to suffer, Proctor alleges that Defendants’ failure to undertake meaningful section 301.4(d) reviews “render[s] [his] indefinite confinement arbitrary and oppressive in a constitutional sense.” J.A. 77.
Defendants moved for summary judgment on Proctor’s procedural due process claim, arguing primarily that Proctor’s section 301.4(d) reviews comport with procedural due process.
To defend against Defendants’ motion, Proctor deposed witnesses from all three levels of his section 301.4(d) reviews. He began with Christopher DeLutis and Joseph Porcelli, members of Facility Committee panels that reviewed Proctor’s Ad Seg commitment. Both witnesses espoused the belief that, by and large, inmates who once posed an escape risk would never be appropriate candidates for release from Ad Seg. DeLutis testified that there is nothing any of the SHU inmates he has reviewed “could do for [him] to ... believe that they were no longer an escape risk,” J.A. 567, and that there is no “behavior that those specific inmates could exhibit that would make [him] change [his] mind about whether or not they were an escape risk,” J.A. 568. When asked if there was anything an inmate can ever do to overcome an escape history, DeLutis said, “All I know is ... in my experience, I never recommended anybody for release.” J.A. 572. Porcelli’s testimony was similar: He affirmed that he has “never dealt with a prisoner released from [Ad Seg] who has a history of escape.” J.A. 780-81. And when asked, “In your experience, once an inmate is placed in [Ad Seg], they’re never released to general population?” Porcelli responded, “[Y]es, that’s correct.” J.A. 770.
The general view expressed by DeLutis and Porcelli did not change in Proctor’s case—both indicated that, given his escape attempts, they believed Proctor would never be released from Ad Seg. When asked, “Is there anything that Proctor could ever do to change your opinion about whether or not he should be released [from Ad Seg]?” DeLutis answered, “No. I believe [Proctor] is right where he belongs.” J.A. 585. DeLutis ultimately admitted that Proctor’s behavior “plays no role in the decision whether or not to maintain him in [A]d [S]eg” because Proctor “is an escape risk.” Id. Porcelli again struck a similar tone, stating that “the only thing that Mr. Proctor could do for [Porcelli] to believe he’s not an escape risk” is “[g]et old” or “reach the end of his sentence.” J.A. 795. Even as Proctor’s counsel walked Porcelli through section 301.4(d) review reports demonstrating that Proctor had a positive disciplinary record for over five years, Porcelli stood by his decision to recommend continuation of Proctor’s Ad Seg term. He testified that Proctor “[s]till posed an escape risk” given “the amount of time he ha[s] to do” and that he had “[j]ust an inner feeling that ... given the opportunity, [Proctor] would try to [escape] again.” J.A. 800.
Proctor next deposed Scott Kelly and Mark Miller, members of Central Office Committee panels that conducted some of Proctor’s section 301.4(d) reviews. Both recounted methodical Central Office Review procedures, marked by strong reliance on Facility Committee reports. Kelly stated that he places great weight on the Facility Committee because they are “boots on the ground with the inmate.” J.A. 635. Miller similarly stated that the Central Office Committee relies “very heavily” on the Facility Committee. J.A. 908. Miller testified that he does no preparation for meetings of the Central Office Committee and instead “reifies] on what is presented” by the Facility Committee. J.A. 904. Miller testified that he has never disagreed with a recommendation by the Facility Committee.
Proctor’s counsel also asked both Kelly and Miller whether, in their experiences, Ad Seg inmates who once posed an escape risk have any hope of being returned to the general population. Kelly identified one instance in which an inmate who had been committed to Ad Seg after escaping from a juvenile facility outside the DOCCS system was later released from the SHU. See J.A. 635 (“[That] [t]he initial incident ... occurred outside the [DOCCS system] was ... taken into account [when deciding whether to release the inmate from Ad Seg].”). Miller was unable, however, to identify any inmate placed in Ad Seg after escaping a DOCCS facility who had been returned to the general population. See J.A. 929.
Lastly, Proctor deposed Bellnier and LeClaire, the two deputy commissioners who conducted the final level of Proctor’s section 301.4(d) reviews. Bellnier’s recollection of his participation in the section 301.4(d) review process demonstrated significant reliance on both the Facility and Central Office Committees. Bellnier testified that in each section 301.4(d) review form he receives, the portion indicating his final decision has already been completed for him by an unknown member of the Central Office Committee. That is, someone completes the deputy commissioner’s portion of the section 301.4(d) review form before Bellnier reviews the Committees’ work, and Bellnier merely signs the bottom of the form to indicate his approval. Just as Miller has never disagreed with a recommendation by the Facility Committee, Bellnier testified that he has never disagreed with a recommendation by the Central Office Committee.
When asked about Proctor in particular, both Bellnier and LeClaire focused on Proctor’s decades-old escape history as stand-alone justification for continuing his Ad Seg. LeClaire stated, “I’m not sure any action that [Proctor] could do would counteract his criminal history” because “Proctor’s criminal history alone justifies] his retention in [Ad Seg].” J.A. 714. That Proctor’s escapes and other serious misbehavior occurred in the distant past was not “relevant” to LeClaire’s section 301.4(d) reviews.
Id.
Bellnier concurred, testifying that he has “formed” the opinion that Proctor “would be a threat to any facility that he was in in general population.” J.A. 488. Bellnier stated that he “ha[s] not been presented with” any type of behavior Proc
Proctor also sought production of the paperwork for each of his section 301.4(d) reviews since his initial Ad Seg commitment in 2003. Many of the section 301.4(d) reports reflect detailed evaluations of the appropriateness of Proctor’s continued Ad Seg term; occasionally, the reports contain specific objection-by-objection responses to Proctor’s written complaints. The reports also reveal, however, three issues of note: First, six of Proctor’s section 301.4(d) reviews, from December 2007 through October 2008, note that Proctor’s “[Ad Seg] status has a disciplinary aspect to it.” J.A. 368-74; see J.A. 364-66. Second, many of the reports are virtually identical to each other, with the exception of a few stray notations. See, e.g., J,A. 318-32 (over one year of virtually identical reports), 342-57 (over one year of virtually identical reports), 360-74 (over one year of virtually identical reports). And third, the Facility Committee’s reasoning in some of the reports is hard to understand: The committee wrote that “[Proctor’s] positive behavior and attitude with staff make him a high profile security concern,” that Proctor’s “superficial ] cooperation] on a day to day basis ... can not [sic] mask his resistance to authority,” and that Proctor’s good behavior was irrelevant because the SHU “provides little opportunity for infractions.” J.A. 360-66, 373, 419. When asked at his deposition to explain what the Facility Committee meant by these notations, Porcelli responded, “That’s a little weird, isn’t it_I can’t explain that.” J.A. 810.
In October 2015, the District Court granted Defendants’ motion for summary judgment.
Proctor v. LeClaire,
No. 9:09-cv-1114,
This appeal followed.
DISCUSSION
“[W]e review
de novo
a grant of summary judgment,” affirming “only where ‘there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’ ”
Willey,
I
Proctor claims that he was denied procedural due process. To prevail, he must be able to demonstrate (1) that Defendants deprived him of a cognizable interest in “life, liberty, or property,” (2) without affording him constitutionally sufficient process. U.S. CONST, amend. XIV, § 1;
Wolff v. McDonnell,
Proctor raises a view of inmate procedural due process this Court has yet to address. While he acknowledges that Defendants have nominally afforded him sufficient process by conducting regular section 301.4(d) reviews, Proctor argues that those reviews have been in substance “hollow,” “perfunctory,” and meaningless. Appellant’s Br. 24. A meaningless section 301.4(d) review, Proctor asserts, is the functional equivalent of no review at all and therefore constitutionally insufficient. Proctor also argues that Defendants have violated the Due Process Clause by using Ad Seg as a means to punish him improperly and as a pretext to confine him in the SHU indefinitely.
Proctor’s argument raises two preliminary concerns: First, Proctor’s claim cannot serve as an appeal from his section 301.4(d) reviews. Procedural due process does not permit a court to review the substance of Defendants’ decision to confine Proctor in Ad Seg.
See Graziano v. Pataki,
A
In
Hewitt v. Helms,
the Supreme Court described what process is due from prison officials making Ad Seg determinations.
Once an inmate has been confined in Ad Seg,
Hewitt
mandates that prison officials “engage in some sort of periodic review of the confinement” to verify that the inmate “remains a security risk” throughout his term.
Hewitt,
It is well established that whenever process is constitutionally due, no matter the context, “[i]t ... must be granted at a meaningful time and in a meaningful manner.”
Armstrong v. Manzo,
The state’s interest in flexible Ad Seg review procedures—maintaining institutional security—is substantial. Institutional safety and security are perhaps a prison facility’s most important considerations.
Bell,
However, the private interest implicated by an extended and indefinite stay in Ad Seg is also weighty.
Hewitt
instructs that an inmate in Ad Seg who “was merely transferred from one extremely restricted environment to an even more confined situation” generally does not have a private interest “of great consequence.”
See
In light of those counterbalancing interests, we believe that meaningful periodic reviews of Ad Seg must at least satisfy the following criteria:
First, the reviewing prison officials must actually evaluate whether the inmate’s continued Ad Seg confinement is justified.
See Hewitt,
Thud and finally, the reviewing officials must maintain institutional safety and security (or another valid administrative justification) as their guiding princi-pies throughout an inmate’s Ad Seg term. SHU confinement that began for proper Ad Seg purposes may not morph into confinement that persists for improper purposes. The state is entitled to the procedural flexibility that
Hewitt
allows because of its manifest interest in maintaining safe detention facilities and other similar administrative concerns; “the
Mathews
balancing test tips in favor of the inmate’s liberty interest” when a state seeks to impose discipline.
Patterson,
Our resolution of this matter is in accord with the efforts of four of our sister circuits. In
Kelly v. Brewer,
B
Proctor has raised triable factual questions as to whether his section 301.4(d) reviews have been constitutionally meaningful.
DOCCS officials’ own statements raise serious doubts about whether they have conducted Proctor’s periodic reviews with the outcomes pre-ordained. We know from DeLutis and Porcelli, the “boots on the ground” whose opinions DOCCS officials accord significant weight, see J.A. 635, 8 that Ad Seg may function as the equivalent of indefinite SHU confinement, even though section 301.4(d) reviews are nominally being conducted on a regular basis. According to the deponents, the standard DOCCS practice is that an inmate “never” gets out once he has been placed in Ad Seg. See J.A. 572, 770. No witness to date has been able to identify a single inmate confined in Ad Seg after an escape from a DOCCS facility who was later returned to the general population. The Due Process Clause, of course, commands a process, not a particular result. But, when process is nominally afforded to inmates over a significant period of time without any hint of success it may raise questions in a reasonable jury’s mind about whether that process has been meaningful as it relates to Proctor.
Defendants’ statements indicate that Proctor’s section 301.4(d) reviews in particular are no more than hollow formalities. LeClaire believes that Proctor’s “criminal history alone” can support continuing his Ad Seg term. J.A. 714. If that were true, it would obviate the need to conduct periodic reviews of Ad Seg and make a mockery of Hewitt’s admonition against indefinite confinement, as it would permit the continuation of Ad Seg based solely on past events that will never change. Porcelli’s descriptions of his section 301.4(d) reviews confirmed that he and LeClaire are of the same mind. Proctor’s counsel walked Por-celli through five years of reports that indicate Proctor’s behavior in Ad Seg has been genuinely positive, and still Porcelli insisted that Proctor should be held in Ad Seg simply because he escaped in 1994.
As for Bellnier, it is unclear what if any standard he uses to evaluate Proctor. A
One comes away from these depositions with nagging skepticism about whether there is anything Proctor could ever do to be released from Ad Seg. And indeed when Proctor’s counsel asked DeLutis that very question, DeLutis made clear that the answer is no, stating that there is nothing that Proctor can do that would convince DOCCS officials to release him. See J.A. 585. DeLutis affirmed that he disregards evidence of Proctor’s recent behavior when conducting section 301.4(d) reviews because that information has no effect given Proctor’s two-decade-old escape. See J.A. 585-86. 9 It is as if DOCCS officials are not just moving the goalposts on Ad Seg inmates like Proctor—there are no goalposts at all. That cannot satisfy Hewitt.
The paper evidence raises additional questions about whether Proctor’s section 301.4(d) reviews have been designed to evaluate or to perpetuate his Ad Seg term. Much of the section 301.4(d) review paperwork is repetitive and rote. The years of virtually identical reports may suggest to a reasonable jury that Proctor’s reviewers treated the process as satisfied by boilerplate explanations instead of a forthright review.
Cf. Sourbeer v. Robinson,
It is important to recognize that not all of the evidence points in favor of Proctor. Some of the evidence could lead a reasonable jury to conclude, as Defendants urge, that DOCCS officials have analyzed Proctor’s good behavior in their section 301.4(d) reviews and “found it to be outweighed by other facts,” specifically Proctor’s multiple escape attempts and violent acts towards other prisoners. Appellees’ Br. 30. The deposition transcripts and section 301.4(d) review reports contain a substantial amount of evidence that a jury may view as demonstrating DOCCS officials’ methodical approach to conducting periodic Ad Seg reviews, including but not limited to the testimony of Kelly and Miller who recounted measured review procedures and the reports’ objection-by-objection responses to Proctor’s written statements. It is not our role on review of a grant of summary judgment, however, to weigh that evidence against the evidence favorable to Proctor’s claim.
See Kaytor,
[[Image here]]
In sum, periodic reviews of Ad Seg satisfy procedural due process only when they are meaningful. Reviews are meaningful only when they involve real evaluations of the administrative justification for confinement, they consider all of the relevant evidence that bears on whether that administrative justification remains valid, and they ensure that Ad Seg is used as neither a form of punishment nor a pretext for indefinite confinement. Proctor has produced sufficient evidence to raise factual questions about whether his section 301.4(d) reviews have met that standard.
II
Proctor also argues that the District Court’s
sua sponte
grant of summary judgment for Defendants on his substantive due process claim violated Federal Rule of Civil Procedure 56(f). Rule 56(f) permits a court to grant summary judg
CONCLUSION
We have considered the parties’ remaining arguments and find them to be without merit. The judgment of the District Court dated October 14, 2015, is hereby VACATED in its entirety and the case is REMANDED to the District Court for further proceedings.
Notes
. In other cases, section 301.4(d) review is streamlined into a process where officials from the prison facility, including the superintendent, review an inmate’s case and render a final decision without the input of the DOCCS headquarters. Id. § 301.4(d)(2).
. One DOCCS official described Shawangunk as “a maxi max” facility that "shouldn’t be escapable from.” J.A. 929.
. Although SHU conditions under Ád Seg and under Disciplinary Segregation are similar, - DOCCS’s affords Ad Seg inmates a few additional privileges, such as access to playing cards, headphones, up to ten pieces of reading material, ten additional personal photos, stamps, and a small bottle of skin cream. See N.Y. Comp. Codes R. & Regs. tit. 7, § 303,2.
. Defendants ask us to apply "a presumption of regularity” that they claim "attaches to the actions of government agencies[,] such as DOCCS,” and "public officers,” such as Defendants. Appellees’ Br. 22-23 (internal quotation marks omitted) (quoting
U.S. Postal Serv. v. Gregory,
. When the "sole purpose of confinement is punishment,” prison officials must provide more robust procedural protections.
Patterson v. Coughlin,
. Tellingly, Helms’s fifty-one-day Ad Seg term likely would not require any constitutional process today,
See Wilkinson v. Austin,
.
Accord Tavares v. Amato,
. Although the Facility Committee is empowered fay statute to issue only a recommendation, not a final decision, on whether to continue an inmate’s Ad Seg term, the testimony of Facility Committee members DeLutis and Porcelli may carry significant weight at trial. The Facility Committee is more powerful in practice than it appears on paper. Central Office Committee members Kelly and Miller, as well as Deputy Commissioner Bellnier, all testified that they accord Facility Committee recommendations substantial weight. In fact, Kelly, Miller, and Bellnier all affirmed that they have never disagreed with the recommendation of the Facility Committee.
. It is important to note that Proctor has not just pointed to evidence of his good behavior. If he had merely done that and Defendants countered that they had reviewed and either genuinely discredited his good behavior or found that his poor behavior outweighed it, then Proctor’s procedural due process claim would amount to an impermissible substantive appeal of his section 301.4(d) reviews.
See Graziano,
. Proctor also argues (unsuccessfully) that whether Defendants have used Ad Seg to impose impermissible punishment is a triable issue. If Defendants have confined Proctor in Ad Seg solely to discipline him then section 301.4(d) reviews, which purport to comply with
Hewitt
but not with the heightened procedures required to impose Disciplinary Segregation, are insufficient as a matter of law.
See Patterson,