Opinion
99 Civ. 9442
April 11, 2002
OPINION AND ORDER
Plaintiff, a prisoner in state custody, brings this action alleging that his confinement in keeplock for two separate periods, one of 23 days and the other of 12 days, violated his due process rights. He also alleges that his confinement in keeplock was a result of retaliation by prison officials against whom he had filed inmate grievances. The Defendants now move for summary judgment.
In order to establish a due process claim with respect to the conditions of confinement, a prisoner must demonstrate that the disciplinary sanction imposed on him resulted in "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 484, 115 S. Ct. 2293, 132 L.Ed.2d 418 (1995). In Williams v. Goord, 111 F. Supp. 280 (S.D.N.Y. 2000), Judge Scheindlin found that a period of 75 days in Special Housing Unit ("SHU") confinement was not an "atypical and significant hardship." In her thorough opinion Judge Scheindlin explained:
The Second Circuit has instructed that "[a]lthough there is no bright-line rule regarding the length or type of sanction that would give rise to an `atypical and significant hardship,' this standard will not be met unless the disciplinary and administrative sanctions are onerous." Jenkins, 179 F.3d at 28 (quoting Sandin, 515 U.S. at 486, 115 S.Ct. 2293). . . The Second Circuit has emphasized that the Sandin analysis entails both a consideration of the duration of the challenged confinement as well as a fact-intensive examination of the conditions of that confinement. See, e.g., Ayers v. Ryan, 152 F.3d 77, 83 (2d Cir. 1998); Arce v. Walker, 139 F.3d 329, 336 (2d Cir. 1998); Brooks v. DiFasi, 112 F.3d 46, 49 (2d Cir. 1997)
As the Second Circuit has recently explained, after Sandin, a prisoner has no actionable due process claim if other prisoners typically experience approximately the same deprivation as a result of the "ordinary administration of the prison." Welch v. Bartlett, 196 F.3d 389, 393 (2d Cir. 1999). Due process claims are reserved instead for those prisoners who endure hardships that are "substantially more grave" than those hardships that prisoners would ordinarily experience as members of the general population. Id.
Although the length of the sanction imposed on plaintiff was 75 days, "SHU confinement in New York generally does not impose "atypical and significant hardship' because it remains within the normal range of prison custody." Trice v. Clark, 94 Civ. 6871, 1996 WL 257578, at *3 (S.D.N.Y. May 16, 1996) (citing Frazier, 81 F.3d at 317).111 F. Supp.2d at 288-89.
The conditions of confinement of which Plaintiff complains were not significantly different from that at issue in Williams v. Goord. Therefore, for the reasons set forth in that case by Judge Scheindlin, Plaintiff's due process claims are dismissed.
Turning to Plaintiff's retaliation claims, Judge Scheindlin's opinion in Williams v. Goord is also directly on point since in that case she also dismissed a retaliation claim similar to that which Plaintiff alleges, stating:
In order to survive summary judgment on a retaliation claim under § 1983, a prisoner "bears the burden of showing (1) that the conduct at issue was constitutionally protected; and (2) that the protected conduct was a substantial or motivating factor in the prison officials' decision to discipline" him. Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (citing Mt. Healthy City School Dist. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977)). Because claims of retaliation are easily fabricated, courts must "examine prisoners' claims of retaliation with skepticism and particular care." Colon, 58 F.3d at 872. "In recognition of the reality that `retaliation claims can be fabricated easily, plaintiffs bear a somewhat heightened burden of proof, and summary judgment can be granted if the claim appears insubstantial.'" Gill v. PACT Org., 95 Civ. 4510, 1997 WL 539948, at *12 (S.D.N.Y. Aug. 28, 1997) (quoting Justice v. Coughlin, 941 F. Supp. 1312, 1317 (N.D.N.Y. 1996))
Plaintiff's sole evidence of retaliation is that he filed a grievance against Portz on August 2, 1998, and three days later Portz lodged a purportedly false misconduct report against him. Although the temporal proximity of the filing of the grievance and the issuance of the misbehavior report is circumstantial evidence of retaliation, such evidence, without more, is insufficient to survive summary judgment. See, e.g., Ayers v. Stewart, 101 F.3d 687, No. 96-2013, 1996 WL 346049, at *1 (2d Cir. 1999) (Plaintiff's "reliance on circumstantial evidence of retaliation — namely, the proximity of the disciplinary action to his complaint where no misbehavior reports were previously filed against him — does not suffice to defeat summary judgment.").111 F. Supp.2d at 290.
Plaintiff's evidence of retaliation here is even less compelling than that found insufficient to support the retaliation claim in Williams v. Goord. The grievances that Plaintiff filed prior to the disciplinary proceedings at issue here did not involve any of these Defendants, therefore, there is no basis to assume that these Defendants instituted disciplinary proceedings against Plaintiff to retaliate for his filing grievances against other corrections officers.
In the typical case, the fact that a prison official files charges against a prisoner shortly after the prisoner filed a grievance against that officer might support a slight inference of retaliation. Here, however, Plaintiff has filed over a hundred grievances. Since there has never been a time that a grievance by Plaintiff was not recently filed, there is no basis for inferring a motive of retaliation from the fact that the disciplinary action was close in time to petitioner's filing of a grievance.
Petitioner also claims that he was denied medical treatment because he had filed grievances against the prison medical staff. However, those claims are presently before this Court in another action filed by Plaintiff and there is no reason to have a second action on those claims. Therefore those claims are dismissed here, without prejudice to Plaintiff's right to assert them in that action.
For the foregoing reasons, Defendants' motion for summary judgment is granted and the complaint is dismissed.