Reynoso v. Selsky
292 F. App'x 120
2d Cir.
2008
Check Treatment
Docket

SUMMARY ORDER

In May 2002, Plaintiff-Appellant Ignacio Reynoso filed a complaint against the New York Department of Correctional Services (“DOCS”), the New York State Division of *122Parole, and a series of individual defendants who were employed at these agencies as correctional officers, as parole hearing officers, or in other positions. The Appellant alleges that his constitutional rights were violated while he was ineareer-ated at Elmira and Southport Correctional Facilities. In July 2002, the district court dismissed several claims pursuant to 28 U.S.C. §§ 1915 and 1915A, and determined that the only issue remaining before the court was whether Reynoso’s due process rights were violated during the February and March 2001 disciplinary hearings at Southport Correctional Facility. The remaining defendants (collectively “Appel-lees”) filed a motion for summary judgment and Reynoso filed a cross-motion for summary judgment. The district court subsequently granted the Appellees’ motion and denied Reynoso’s. Reynoso now appeals pro se, arguing, inter alia, that none of his claims should have been dismissed and that material facts are in dispute as to whether his due process rights were violated during the February and March 2001 hearings We assume the parties familiarity with the facts of the case, its procedural history, and the scope , oí the issues on appeal.

This Court reviews the district courts grant of summary judgment and the district court s sua sponte dismissal of claims pursuant to § 1915A de novo. Howley v. Town of Stratford, 217 F.3d 141, 151 (2d Cir.2000); Shakur v. Selsky, 391 F.3d 106, 112 (2d Cir.2004). Summary judgment is warranted when, after construing the evidence in the light most favorable to the non-moving party and drawing all reasonable inferences in its favor, there is no genuine issue as to any material fact. Fed.R.Civ.P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); June v. Town of Westfield, 370 F.3d 255, 257 (2d Cir. 2004). We have considered all of Appellant’s claims de novo and, for substantially the reasons stated by the district court, Reynoso v. Selsky, No. 02-cv-6318 (CJS), 2007 WL 1237684, 2007 U.S. Dist. LEXIS 35208 (W.D.N.Y. Apr. 27, 2007), find them to be without merit with one exception,

As the Appellees admirably concede, there is a genuine issue of material fact that precludes summary judgment on the Appellant’s due process claim against Corrections Officer Held, arising out of the March 2001 disciplinary proceeding. Appellee’s Br. at 1, 12 n. 6. The district court held that Reynoso did not establish that a liberty interest had been violated as a result of the March 23, 2001 hearing beeause the sentence-thirty days in «keeplock»_was not an “atypical and signiflcant hardship„ compared to the burdeng of ord¡nary prison confmement. Reynoso, 2007 WL 1237684, at *6, 2007 U.S. Dist. LEXIS 35208, at *16-17 see also Sealey v. Conner 515 U.S. 472, 483-84, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995)). In finding that this . , , punishment was not atypical and signifiCant,” however, the district court failed to consider that this penalty would immediately follow the four-month Special Housing Unit sentence imposed as a result of the Februaiy 2001 healing.

Overlapping disciplinary penalties may, under some circumstances, have to be aggregated for puiposes of determining whether a liberty interest was violated, Sims v. Artuz, 230 F.3d 14, 23-24 (2d Cir.2000) (citing Giltner, 197 F.3d at 587 n. 7). We have previously held that 305 days of confinement under normal segregated housing unit conditions met the Sandin standard for atypicality, Colon v. Howard, 215 F.3d 227, 231-32 (2d Cir.2000), and *123that a 101-day aggregated confinement in a highly-restrictive segregated housing of a New York correctional facility, without more, was not an atypical confinement, Giltner, 197 F.3d at 589-90. Aggregative sentences within this range — between 101 and 305 days — as here, require a district eourt to articulate specific findings of the conditions of the imposed confinement relative to ordinary prison conditions before determining whether such confinement is atypical. See Palmer v. Richards, 364 F.3d 60, 64-65 (2d Cir.2004). Accordingly, the district court was required to consider whether the sentences should have been aggregated for this due process inquiry, and if so, to articulate findings as to why the 150-day total sentence was not “atypical and significant.” Such a determination is anything but simple, and cannot be resolved summarily.

Moreover, the Appellees concede that there are contradictory accounts as to whether Reynoso waived his right to be present at his March 2001 disciplinary hearing. When Reynoso did not appeal- at the hearing, Lieutenant Donahue, the hearing officer, asked Corrections Officer Held if he had gone to Reynoso’s cell to escort him to the hearing. Held advised Donahue that he had gone to Reynoso’s cell and that Reynoso refused to attend ,, , . m, . , • , the hearing. That much is undisputed. r, ,, Consequently, we agree with the district court that summary judgment is appropriate as to the hearing officer, Donahue. As to Held, however, there is a material dispute as to whether he actually went to Reynoso’s cell to inform him of the hearing and as to whether he in fact signed the „ .. ....... ...i form waiving his right to be present at the , . tt u . u tx i mi hearing as Held told Donahue. The contradictory accounts here preclude, as the Appellees graciously concede, summary judgment with respect to Held. Appellee’s Br. at 12 n. 7.

Accordingly, after considering all of the Appellant’s arguments, we AFFIRM the district court’s decision as to all but one of the Appellant’s claims. We VACATE and REMAND for further consideration consistent with this order Reynoso’s claim against Corrections Officer Held that Rey-noso’s due process rights were violated during the March 2001 hearing,