Hart v. Artus

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

__________________________________________

KEITH HART and SEAN RYAN,

DECISION and ORDER

Plaintiffs,

-vs-

6:16-CV-6808 CJS

DALE ARTUS, Superintendent of

Attica Correctional Facility, STUART

ECKARD, J. DONOHUE, Offender

Rehabilitation Coordinator of Attica

Correctional Facility, ANTHONY ANNUCCI,

Acting Commissioner of the NYSDOCCS,

JOSEPH BELLNIER, Deputy Commissioner

of the NYSDOCCS, and DON VENETTOZZI,

Director of Special Housing and Inmate

Discipline of the NYSDOCCS, all individually

and in their official capacities,

Defendants.

__________________________________________

INTRODUCTION

Plaintiffs are prison inmates in the custody of the New York State Department of

Corrections and Community Supervision (“DOCCS”) who bring this action under 42

U.S.C. § 1983 to challenge the constitutionality of their continued long-term confinement

in “Central Office Administrative Segregation” (“Central Office Ad Seg”). The Complaint

contends that Plaintiffs and other Central Office Ad Seg inmates are kept indefinitely in

the Special Housing Unit (“SHU”) with no realistic chance of release, resulting in violations

of their federal constitutional rights to due process and humane living conditions. Now

before the Court are two applications by Defendants: A motion (ECF No. 33) to partially

dismiss the Complaint pursuant to Fed. R. Civ. P. 12(b)(6); and, a motion (ECF No. 34)

to strike affidavits filed by Plaintiffs in opposition to the motion to dismiss. For the reasons

discussed below, the motion to strike is denied and the motion to dismiss is granted in

part and denied in part.

BACKGROUND

Plaintiffs Keith Hart (“Hart”) and Sean Ryan (“Ryan”) have each been in the

custody of the New York State Department of Corrections and Community Supervision

(“DOCCS”) for several decades.1 Both were initially placed in DOCCS custody after being

convicted of separate and unrelated murders and robberies. Ryan subsequently was

convicted of an additional murder (as well as arson) while in DOCCS custody, after he

killed a co-defendant who had testified against him at trial.2 Ryan was also convicted of

additional criminal conduct while in DOCCS custody, including an assault on DOCCS

staff.3 Hart is presently serving an aggregate sentence of 42 years to life, while Ryan is

serving an aggregate sentence of 70 years to life.4

Hart and Ryan have each been involved in several attempted or completed

1 Ryan originally entered DOCCS’ custody in 1978, following his conviction for murder and robbery.

According to a decision of the New York State Supreme Court, Appellate Division Third Department,

while incarcerated Ryan was also convicted or murder and arson, after killing another inmate and setting

the inmate’s cell on fire. See, Matter of Selsky, 2008 NY Slip Op 01880 [49 A.D.3d 926] March 6, 2008

(Denying Ryan’s Article 78 Proceeding challenging his placement in administrative segregation). Hart

has been in DOCCS custody since 1981, after being convicted of multiple counts of robbery and murder.

Prior to the events leading to this lawsuit, Hart escaped from prison once, and attempted to do so on

another occasion. See, People v. Hart, 93 N.Y.2d 825, 826, 710 N.E.2d 263, 264 (1999) (“In 1981,

defendant was convicted of two counts of murder, two counts of robbery in the first degree and one count

of robbery in the second degree. He was sentenced to concurrent terms of 25 years to life for the murder

convictions, followed by one consecutive 10–to–20–year sentence for robbery in the first degree. In 1983,

while serving the foregoing sentence, defendant escaped from the Elmira Correctional Facility and was

subsequently convicted of escape in the first degree and sentenced to a consecutive term of 2 to 4 years.

In 1988, defendant was convicted of attempted escape in the first degree and was sentenced to another

consecutive term of 1 ½ to 3 years.”).

2 See, Ryan v, Selsky, 49 A.D.3d 926, (3d Dept. 2008).

3 Id.

4 These aggregate sentences include the sentences that were imposed following Hart’s and Ryan’s

criminal convictions for the escapes and attempted escapes discussed herein.

escapes from custody. In 1979, Ryan escaped from the Rikers Island.5 In 1983, Hart

escaped from Elmira Correctional Facility (“Elmira”) by cutting through window bars. In

1988, Hart again attempted an escape, this time from Green Haven Correctional Facility

(“Green Haven”), by partially sawing through the bars of his cell window, while possessing

ropes, hacksaw blades, a grappling hook, a flashlight, duct tape and travel directions.6

Finally, in November 1994, both Ryan and Hart, along with two other inmates, escaped

from Shawangunk Correctional Facility (“Shawankgunk”). After each completed escape,

Plaintiffs were quickly re-captured.

Following the 1994 escape from Shawangunk, both Ryan and Hart served lengthy

administrative disciplinary sentences for the escape in the SHU. Specifically, Hart served

a 15-year SHU sentence, while Ryan served an 11 ½-year SHU sentence. The general

conditions of such confinement were evidently typical of SHU confinement in New York

State prisons, in which

the prisoner is[ ] placed in a solitary confinement cell, kept in his cell for 23

hours a day, permitted to exercise in the prison yard for one hour a day,

limited to two showers a week, and denied various privileges available to

general population prisoners, such as the opportunity to work and obtain

out-of-cell schooling. Visitors are permitted, but the frequency and duration

is less than in general population. The number of books allowed in the cell

is also limited.

Vance v. State of New York Dep't of Corr., No. 918CV0748MADATB, 2018 WL 6047828,

at *5 (N.D.N.Y. Nov. 19, 2018) (quoting Palmer v. Richards, 364 F.3d 60, 66 n.3 (2d Cir.

2004, with internal quotation marks and alterations omitted). Although, Plaintiffs

5 See, https://www.nytimes.com/1979/06/12/archives/prisoner-convicted-in-1977-east-side-murder-flees-

jail-on-rikers.html; see also, Ryan v. Selsky, 49 A.D.3d 926 (3d Dept. 2008) (Mentioning that Ryan had

been convicted of “two counts of escape involving separate facilities,” apparently referring to Rikers Island

and, later, Shawangunk Correctional Facility).

6 ECF No. 31.

emphasize in this action that SHU confinement also involves other deprivations such as

lack of access to religious services; lack of adequate access to law library services; lack

of rehabilitative programs; lack of privacy when discussing religious and medical matters;

meals that are unappetizing and/or nutritionally inadequate; subpar medical care; and

confinement in close proximity to mentally-ill prisoners7 serving disciplinary sentences

who generate constant deafening noise and sickening odors.8

After Plaintiffs’ disciplinary SHU sentences were completed, DOCCS Central

Office determined that Plaintiffs should remain in the SHU, pursuant to DOCCS’ Central

Office Ad Seg policy. In that regard, while Central Office Ad Seg is characterized by

DOCCS as a non-punitive type of confinement, it involves placement of inmates into SHU

solitary-confinement cells alongside inmates who are serving disciplinary sentences in

SHU. For the most part, conditions of confinement for Central Office Ad Seg inmates in

SHU are the same as those for inmates serving disciplinary sentences in SHU, though

inmates serving disciplinary sentences typically remain in SHU for much shorter periods.

Inmates serving disciplinary sentences in SHU also have a definite date upon which their

SHU sentences will end, whereas the term of SHU confinement for Central Office Ad Seg

inmates is open-ended. Additionally, Plaintiffs allege that inmates serving disciplinary

sentences in SHU have some additional privileges that Ad Seg inmates do not have, such

as access to the commissary and the use of computer tablets for legal research.9

According to Plaintiffs, “the Central Office Ad Seg recommendation is usually

written by a member of the Inspector General’s Office and [ ] will allege that the prisoner

7 The Complaint refers to Attica’s SHU as “a psychiatric ward.” Complaint at ¶ 95.

8 Complaint (ECF No. 1) at pp. 4-26.

9 Complaint at ¶ ¶ 40-41, 117-119.

escaped previously [or] committed an act of violence or some other form of misconduct

considered serious” enough that they need to be isolated from inmates and staff.10 The

general procedure involved in placing and maintaining an inmate in Central Office Ad Seg

was recently explained by the U.S. Court of Appeals for the Second Circuit as follows:

In the DOCCS system, there are two relevant reasons for prison

administrators to send an inmate to the SHU—Disciplinary 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, 459 U.S.

460, 477 n.9, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983), abrogated in part on

other grounds by Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132

L.Ed.2d 418 (1995). New York effectuates that mandate by providing an

inmate with an initial hearing within fourteen days of his confinement in Ad

Seg, see N.Y. Comp. Codes R. & Regs. tit. 7, §§ 254.6, 301.4(a), and with

reviews conducted pursuant to section 301.4(d) of the DOCCS regulatory

10 Complaint at ¶ 19.

code (“section 301.4(d) reviews”) every sixty days until he is returned to the

general population, see id. § 301.4(d).

Section 301.4(d) review . . . is a three-step process. First, a committee

commonly referred to as the “Facility Committee,” consisting of “a

representative of the facility executive staff, a security supervisor, and a

member of the guidance and counseling staff,” convenes to review the

inmate’s institutional record. Id. § 301.4(d)(1). The Facility Committee

prepares and submits to the superintendent of the prison a report outlining

“(i) reasons why the inmate was initially determined to be appropriate for

[Ad Seg]; (ii) information on the inmate’s subsequent behavior and attitude;

and (iii) any other factors that [the committee] believe[s] may favor retaining

the inmate in or releasing the inmate from [Ad Seg]” and recommending

whether to continue the inmate’s SHU term. Id.

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).

Proctor v. LeClaire, 846 F.3d 597, 601–02 (2d Cir. 2017) (“Proctor”)11 (footnote omitted).12

11 Incidentally, Patrick Proctor, the Plaintiff-Appellant in Proctor v. LeClaire, was one of the four inmates

who, along with Hart and Ryan, escaped from Shawangunk in 199. See, id. at 602.

12 Notwithstanding the deliberative process described in the foregoing paragraphs, in Proctor the Second

Circuit discussed evidence adduced by the Plaintiff-Appellant which had raised triable issues of fact as to

Plaintiffs Hart and Ryan, as a consequence both of their disciplinary sentences

and their subsequent placement in Central Office Ad Seg, have remained continuously in

SHU since 1994. Ryan’s term of Central Office Ad Seg confinement began in or about

April 2006,13 while Hart’s term began on October 29, 2009,14 meaning that they have now

been in Ad Seg for 15 years and 11 years, respectively.

On December 12, 2016, the two Plaintiffs commenced this action by filing a

Complaint (ECF No. 1) that, again, generally contends that Central Office Ad Seg inmates

are being kept in SHU permanently, due to DOCCS officials failure to provide them the

required due process, and that such long-term isolation in SHU in term results in a variety

of constitutional violations based on the living conditions in SHU. A central theme of the

Complaint is that it is physically, spiritually and emotionally harmful, and contrary to any

legitimate penological justification, to house Administrative Ad Seg inmates in the punitive

environment of the SHU for long periods. The other main theme is that DOCCS officials

do not actually follow the Central Office Ad Seg procedural protections discussed earlier,

but, instead, conduct sham proceedings designed to keep Central Office Ad Seg inmates

in SHU indefinitely. More specifically, the Complaint purports to assert six (6) separate

causes of action.

The First Cause of Action alleges that the conditions of confinement in SHU

prevent Plaintiffs from practicing their religion (Catholicism), in violation of the First

Amendment and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”).

whether DOCCS was providing constitutionally meaningful review of inmates’ placement in Central Office

Ad Seg. Id., 846 F.3d at 612-614. Such evidence included statements by DOCCS officials indicating that

“the standard DOCCS practice is that an inmate ‘never’ gets out once he has been placed in Ad Seg.” Id.

at 612.

13 Ryan v. Selsky, 49 A.D.3d at 926.

14 ECF No. 24-1 at p. 28.

In this regard, Plaintiffs contend that they, along with all other inmates in SHU, are denied

access to “communal and denominational worship services,” “private religious

counseling,” and “any type of religious activities which cannot be performed in a cell by

oneself.” Plaintiffs allege that with regard to Central Office Ad Seg inmates, such denial

is not reasonably related to any legitimate penological interest.

The Second Cause of Action alleges that Administrative Ad Seg inmates placed in

SHU have only limited access to law library materials, which in at least one instance has

denied Hart access to the courts, all in violation of Plaintiffs’ rights under the Sixth and

Fourteenth Amendments. The Complaint states, for example, that prison law libraries are

now largely computerized, but Central Office Ad Seg inmates have no access to

computers. The Complaint further indicates that Central Office Ad Seg inmates have no

way to learn of new legal rulings since they do not have access to “advance sheets.” The

Complaint additionally contends that the procedure within SHU for inmates to request

legal materials from the law library is impermissibly cumbersome and time consuming,

since it requires inmates to request materials using “the exact citations of case law and

statutes.”

The Third Cause of Action alleges that Defendants have violated Plaintiffs’

Fourteenth Amendment Procedural Due Process rights by failing to provide the required

periodic review of Plaintiffs’ Ad Seg status. In that regard, the Complaint alleges that

Defendants have, in some instances, failed to conduct reviews altogether, and, in other

cases, have performed perfunctory reviews that were not “meaningful” in a constitutional

sense. Plaintiffs allege that DOCCS officials are required to perform such reviews at

specified intervals, but that in some instances the reviews have not occurred. Plaintiffs

also maintain that when such reviews have occurred, there has been no real discussion

or consideration by the committee members involved in the review process, and that

those parties have simply “rubber stamped” the recommendation of the facility deputy

superintendent for security, who typically drafts the Facility Committee’s report. Plaintiffs

indicate that the periodic review reports are often simply copied verbatim from prior

reports, and sometimes contain false information. Alternately, Plaintiffs contend that the

reports rely almost exclusively on Plaintiffs’ past misconduct, some of which was

committed decades earlier, without considering whether Plaintiffs pose any current threat.

Plaintiffs also state that there are no standards or criteria by which they may earn their

release from Ad Seg, and that their conditions of confinement are so restrictive that they

have no opportunity to demonstrate progress or personal growth, such as might cause

DOCCS officials to conclude that they no longer pose a risk of escape. In sum, Plaintiffs

allege that the review process is a sham, and that placement in Central Office Ad Seg is,

based on DOCCS practices, essentially permanent.15

The Fourth Cause of Action alleges that the “horrible conditions” in SHU violate

the 8th Amendment’s prohibition on cruel and unusual punishment, particularly as they

are experienced by long-term Ad Seg inmates. Plaintiffs allege, for example, that they

are constantly exposed to the oppressive noises, odors and disruptive behaviors of

mentally ill inmates serving disciplinary sentences; that meals in SHU are frequently

unappetizing and inadequate, leaving inmates in a constant state of hunger; that medical

15 For example, in one of his responses to a review report, Hart stated: “These sixty (60) day ad seg

review are generated to satisfy the law. Nothing more. They are written in a routinely [sic] and repetitive

fashion and contain inaccurate, misleading and out right false information. They rely on decades-old

incidents that can (and will) never change. They are also written in a spiteful and vindictive manner. And

they are not ‘meaningful’ in any sense of the word.” ECF No. 31.

care for SHU inmates is subpar; that SHU inmates are not provided adequate means of

cutting their hair or trimming their nails; and that SHU facilities for visitors are dirty and

inadequate. Plaintiffs contend that long-term confinement under such conditions, such

as is experienced by Central Office Ad Seg inmates in SHU, is unnecessarily torturous,

inhumane and harmful to inmates’ mental and physical health, and violates contemporary

standards of decency.

The Fifth Cause of Action contends that Central Office Ad Seg inmates are treated

far worse than inmates confined to SHU for disciplinary reasons, without any rational

basis, thereby violating the Fourteenth Amendment’s Equal Protection Clause. Plaintiffs

state, for instance, that inmates in SHU for disciplinary reasons receive rehabilitative

programs, computer tablets, phone calls and commissary items, whereas Central Office

Ad Seg inmates do not. Plaintiffs maintain that this alleged disparate treatment is

particularly inappropriate since Ad Seg confinement is supposed to be non-punitive.16

The Sixth Cause of Action alleges that, for the same reasons already mentioned,

Central Office Ad Seg confinement violates Plaintiffs’ Fourteenth Amendment

Substantive Due Process rights, since it is “arbitrary, conscience-shocking and

oppressive, and is so egregious and outrageous that it shocks the contemporary

conscience.”17 In support of this claim, Plaintiffs contend that Defendants have, for

decades, used such confinement to create “a de facto permanent solitary confinement

to SHU,”18 despite being aware of the damaging effects of such confinement. In this

regard, Plaintiffs allege that while conditions in SHU are bad, and indeed,

16 Defendants admit that “Ad seg is not punitive but exists solely for the safety of the facility and inmates.”

ECF No. 24-2 at p. 1.

17 Complaint at ¶ 124.

18 Complaint at ¶ 125.

unconstitutional, for inmates serving relatively brief disciplinary sentences, they are even

worse for Ad Seg inmates, since Ad Seg inmates’ exposure to those conditions is

essentially permanent and unrelenting.

On August 3, 2017, the Court issued an Order (ECF No. 22) indicating that it had

screened the Complaint pursuant 28 U.S.C. § 1915A and had found, “at this early stage,”

that Plaintiffs’ claims were sufficient to proceed.

Nevertheless, on August 21, 2017, Defendants filed a motion (ECF No. 24)

purportedly seeking “partial summary judgment pursuant to Rule or [sic] 12(b) of the

Federal Rules of Civil Procedure.” Despite the reference in Defendant’s Notice of Motion

to “partial summary judgment,” Defendants were, according to their accompanying memo

of law, actually moving only for dismissal and not for partial summary judgment.19

Defendants first contend that any aspects of Plaintiffs’ claims that arose more than

three years prior to the date the action was commenced are time-barred under the three-

year statute of limitations for Section 1983 claims. In that regard, Defendants maintain

that the matters complained of in Plaintiffs’ Complaint are all “discrete acts” that do not

fall under the “continuing violation doctrine.” Consequently, Defendants assert, with

regard to all six causes of action, that “[a]ll claims pertaining to events occurring prior to

December 12, 2013 should be dismissed.”

Defendants next contend that Plaintiffs’ Substantive Due Process claim fails as a

matter of law, since “numerous courts, both State and Federal,” have already rejected the

argument that it violates Substantive Due Process to confine non-punitive Ad Seg inmates

in SHU conditions. Alternatively, Defendants maintain that Plaintiffs have not pleaded

19 See, ECF No. 24-2 at p. 12 (“The Complaint should be dismissed as to all claims except Plaintiff Ryan’s

procedural Due Process Claims beginning December 12, 2013.”).

conditions that are arbitrary, conscience-shocking or oppressive in a constitutional sense.

Additionally, Defendants indicate that while Plaintiffs have alleged that their conditions of

confinement (long-term confinement in SHU) could be harmful to some inmates, they

have not alleged that they themselves have actually suffered harmful physical or

psychological effects therefrom.

Defendants further contend that the Court should dismiss all claims for money

damages involving substantive due process and conditions of confinement (but

apparently not claims involving procedural due process), on the grounds of qualified

immunity. On this point, Defendants argue that they are entitled to such immunity since

there is no legally binding precedent indicating that it is unconstitutional to keep inmates

in long-term Central Office Ad Seg confinement. Rather, Defendants state that courts

have repeatedly upheld the constitutionality of such confinement.

Finally, Defendants argue that Plaintiff Hart’s procedural due process claims must

be dismissed since the documentary evidence which they have submitted (consisting of

copies of Hart’s Ad Seg reviews spanning December 2014 to October 2016, which, they

maintain, are integral to the Complaint) indicates as a matter of law that Hart received

meaningful reviews of his Central Office Ad Seg placement. On this point, Defendants

state that the reports indicate that Hart’s reviews were performed according to established

New York State procedures, and that it is irrelevant whether, as Hart contends, the reports

used false or misleading information about Hart to justify his continued detention in Ad

Seg, since courts are not permitted, as part of a procedural due process inquiry, to review

the “substance” of a determination by corrections officials that an inmate should remain

in Ad Seg.

Plaintiffs oppose Defendants’ Motion. Plaintiffs first contend that Defendants’

argument concerning the statute of limitations is incorrect, since the continuing violation

doctrine applies to their claims.20 Plaintiffs further dispute Defendants’ contention that

the Complaint fails to plead a “conscience-shocking” substantive due process claim.

Plaintiffs assert, in that regard, that they have plausibly alleged that long-term solitary

confinement in SHU amounts to torture, and that the documented cumulative effects of

such confinement, of which Defendants were aware, include the development of mental

illness. Plaintiffs further contend that they have personally experienced harmful effects

from such confinement. Additionally, Plaintiffs contend that such confinement is all the

more conscience shocking since it is unnecessary and would not have occurred if

Defendants had properly and meaningfully conducted the periodic Ad Seg reviews. Next,

Plaintiffs contend that qualified immunity does not apply to any of the defendants, since

the constitutional rights which Plaintiffs allege were violated were all clearly established,

such that a reasonable defendant would have realized that he was violating Plaintiffs’

rights. Plaintiffs also contend that Defendants are not entitled to judgment on Hart’s

procedural due process claims since there are clearly disputed issues of material fact.

Plaintiffs assert, for example, that there are issues of fact as to whether Defendants

conducted all of the required reviews of Hart’s Ad Seg status;21 whether the periodic

reviews of Hart’s ad seg status that were conducted were based on false or misleading

information; whether the reviewers gave any consideration to Hart’s statements as

required; and whether the reviewers relied primarily if not exclusively on Hart’s conduct

20 In that regard, however, the pro se Plaintiffs evidently misunderstand the doctrine to pertain to any

claims that have been “continuing” for a long period of time.

21 Plaintiffs state, for example, that Hart received no reviews whatsoever for almost a year, between

October 19, 2016 and September 20, 2017.

from decades earlier while failing to consider whether he currently posed a threat to

institutional safety.

Notably, in addition to filing a responding memorandum of law, Plaintiffs filed

several affidavits and accompanying exhibits. (ECF Nos. 31, 32, 35, 36, 37, 39).22

Plaintiffs indicate that they have filed the affidavits in an abundance of caution, since, as

already mentioned, Defendants’ Notice of Motion refers to Defendants seeking “partial

summary judgment.” Plaintiffs maintain that it would be inappropriate for the Court to

grant summary judgment without first allowing them to conduct discovery. Nevertheless,

Plaintiffs indicate that have submitted affidavits and exhibits just in case the Court decides

to treat Defendants’ motion as one for summary judgment.

On November 1, 2017, Defendants filed an Amended Notice of Motion. (ECF No.

33). The sole purpose of the amended notice was apparently to remove the reference to

“partial summary judgment” that had appeared in Defendants’ original Notice of Motion

(ECF No. 24), apparently due to an editing oversight. Otherwise, the Amended Notice of

Motion merely reiterated that Defendants were moving for partial dismissal pursuant to

Fed. R. Civ. P. 12(b)(6).

Also, on November 1, 2017, Defendants filed a motion (ECF No. 34) to strike the

22 ECF No. 31 is an affidavit from Hart intending to show both that the alleged constitutional violations

have been “continuing” and that Defendants have not conducted proper periodic reviews. ECF No. 32 is

an affidavit from Hart purporting to show that that Defendants have not conducted proper reviews for

Ryan; that Ryan has filed grievances concerning conditions in SHU; that Plaintiffs have personally

suffered the effects of long-term confinement in SHU; and that the review process is a sham. ECF No. 35

is an affidavit from Hart purporting to further show that information included in Hart’s period Ad Seg

reviews was false. ECF No. 36 is an affidavit from Hart, along with a memo of law, urging the Court to

disregard Defendant’s Amended Notice of Motion (ECF No. 33). ECF No. 37 is an affidavit from Hart

further purporting to show that information contained in Hart’s Ad Seg reviews is false and that reviews

have been skipped. ECF No. 39 is another affidavit from Hart, indicating that Ad Seg inmates are still not

receiving reviews, and that when reviews are performed DOCCS officials fail to properly weigh the

inmates’ more-recent good behavior.

affidavits that Plaintiffs filed in response to Defendants’ original motion. In that regard,

Defendants argue that the affidavits are exhibits should not be considered on a Rule

12(b)(6) motion since they are neither part of nor integral to the Complaint.

The Court has considered the Complaint and the Parties’ submissions.

DISCUSSION

Plaintiffs Are Proceeding Pro Se

Since Plaintiffs are proceeding pro se, the Court has construed their submissions

liberally, “to raise the strongest arguments that they suggest.” Burgos v. Hopkins, 14 F.3d

787, 790 (2d Cir.1994).

Motions Under Rule Fed. R. Civ. P. 12(b)(6)

It is now clear that Defendants are not seeking partial summary judgment and are

only seeking partial dismissal under Rule 12(b)(6). The legal standards to be applied on

a motion to dismiss pursuant to Rule 12(b)(6) are clear:

To survive a motion to dismiss, a complaint must plead “enough facts to

state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim is

facially plausible “when the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937,

173 L.Ed.2d 868 (2009).

Progressive Credit Union v. City of New York, 889 F.3d 40, 48 (2d Cir. May 1, 2018).

While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not

need detailed factual allegations, a plaintiff's obligation to provide the

grounds of his entitlement to relief requires more than labels and

conclusions, and a formulaic recitation of the elements of a cause of action

will not do. Factual allegations must be enough to raise a right to relief above

the speculative level, on the assumption that all the allegations in the

complaint are true (even if doubtful in fact).

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964–65, 167 L.Ed.2d 929

(2007); see also, ATSI Communications, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d

Cir. 2007) (“To survive dismissal, the plaintiff must provide the grounds upon which his

claim rests through factual allegations sufficient ‘to raise a right to relief above the

speculative level.’ ”) (quoting Bell Atl. Corp. v. Twombly) (footnote omitted).

When applying this “plausibility standard,” the Court is guided by “two working

principles”:

First, although a court must accept as true all of the allegations contained

in a complaint, that tenet is inapplicable to legal conclusions, and

threadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice. Second, only a complaint that states

a plausible claim for relief survives a motion to dismiss, and determining

whether a complaint states a plausible claim for relief will be a context-

specific task that requires the reviewing court to draw on its judicial

experience and common sense.

Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (citations and internal quotation marks

omitted). “[W]here the well-pleaded facts do not permit the court to infer more than the

mere possibility of misconduct, the complaint has alleged—but it has not shown—that the

pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 1950

(2009) (citation omitted).

Defendants’ Motion to Strike

Defendants have moved to strike the affidavits and exhibits that Plaintiffs filed in

response to Defendants’ original motion, contending that the affidavits and exhibits fall

outside the scope of what the Court may properly consider on a Rule 12(b)(6) motion. It

is clear that when addressing a Rule 12(b)(6) application,

the Court is entitled to consider facts alleged in the complaint and

documents attached to it or incorporated in it by reference, documents

“integral” to the complaint and relied upon in it, and facts of which judicial

notice may properly be taken under Rule 201 of the Federal Rules of

Evidence.

Heckman v. Town of Hempstead, 568 F. App'x 41, 43 (2d Cir. Jun. 3, 2014) (citations and

internal quotation marks omitted).

“A matter is deemed ‘integral’ to the complaint when the complaint ‘relies

heavily upon its terms and effect.’ Typically, an integral matter is a contract,

agreement, or other document essential to the litigation.” Palin v. New York

Times Co., 940 F.3d 804, 811 (2d Cir. 2019). “For a court to regard a

document as ‘integral,’ ‘it must be clear on the record that no dispute exists

regarding the authenticity or accuracy of the document,’ and ‘[i]t must also

be clear that there exist no material disputed issues of fact regarding the

relevance of the document.’” Clybourn v. Spiderbands LLC, No. 18 CIV.

03688 (ER), 2018 WL 6528234, at *2 (S.D.N.Y. Dec. 12, 2018) (quoting

Faulkner v. Beer, 463 F.3d 130, 134 (2d Cir. 2006)).

DPC New York, Inc. v. Scottsdale Ins. Co., No. 19 CIV. 1743 (PGG), 2020 WL 2555241,

at *5 (S.D.N.Y. May 19, 2020).

Here, it was not unreasonable for Plaintiffs to submit affidavits, considering that

Defendants had indicated in their original notice of motion that they were moving for partial

summary judgment. However, now that Defendants have corrected that error and

clarified that they are only seeking relief under Rule 12(b)(6), it is clear that some of the

materials submitted by Plaintiffs should not be considered, while other materials could be

considered. In particular, the affidavits should not be considered, while most, if not all, of

the exhibits attached to the affidavits, consisting primarily of Plaintiffs’ Ad Seg review

reports, could be considered as integral to the Complaint. However, the Court need not

engage in a lengthy discussion of the voluminous exhibits to explain which ones are

integral to the Complaint and which are not, since the Court finds that, with one exception

not involving the disputed documents,23 Plaintiffs’ Complaint is sufficient on its own to

withstand Defendants’ motion to dismiss, without regard to the later-filed affidavits and

exhibits. Consequently, Defendants’ motion to strike (ECF No. 34) is denied as moot.

The Court will now turn to the merits of Defendants’ motion to dismiss.

Section 1983

Plaintiffs are suing pursuant to 42 U.S.C. § 1983. “In order to establish individual

liability under § 1983, a plaintiff must show (a) that the defendant is a ‘person’ acting

‘under the color of state law,’ and (b) that the defendant caused the plaintiff to be deprived

of a federal right.” Back v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107, 122

(2d Cir. 2004) (citation omitted).

Statute of Limitations

Defendants first contend that Plaintiffs’ claims, all of which purportedly arise under

42 U.S.C. § § 1983 and 1985, are barred to the extent that they arose more than three

years prior to the filing of this action. Defendants’ relatively terse argument on this point

focuses primarily on Plaintiff’s Fourteenth Amendment Procedural Due Process claim,

and maintains that the “continuing violation doctrine” does not apply to such claim.

Defendants then add, without further explanation, that “This is true for both the Due

Process claims and the conditions of confinement claims.” (emphasis added).

Plaintiffs do not dispute that a three-year-statute of limitations applies to Section

1983 claims, nor do they maintain that any period of tolling should apply. However, they

contend that their claims are nevertheless timely under the continuing violation doctrine.

The general law on these points is well settled:

23 As will be discussed below, some of Plaintiff’s procedural due process claims are time-barred.

The statute of limitations for actions brought in New York pursuant to §§

1983 and 1985 is three years. See Paige v. Police Dep't of City of

Schenectady, 264 F.3d 197, 199 n.2 (2d Cir 2001) (§§ 1983 and 1985);

Okure v. Owens, 816 F.2d 45, 49 (2d Cir. 1987) (§ 1983). Claims brought

pursuant to §§ 1983 and 1985 accrue “once the plaintiff knows or has

reason to know of the injury which is the basis of his action.” Cornwell v.

Robinson, 23 F.3d 694, 703 (2d Cir. 1994) (internal quotation marks

omitted). Under the continuing violation doctrine, a plaintiff may bring claims

that would otherwise be barred by the statute of limitations provided that “an

act contributing to that [violation] took place within the statutory time period.”

Purcell v. N.Y. Inst. of Tech. - Coll. of Osteopathic Med., 931 F.3d 59, 65

(2d Cir. 2019). The continuing violation doctrine applies only “to claims that

by their nature accrue only after ... some threshold amount of mistreatment,”

and not to “discrete unlawful acts, even where those discrete acts are part

of a serial violation.” Gonzalez v. Hasty, 802 F.3d 212, 220 (2d Cir. 2015)

(internal quotation marks omitted).

Sant v. Stephens, 821 F. App'x 42, 44–45 (2d Cir. 2020).

Here, the Court agrees with Defendants that the continuing violation doctrine does

not apply to Plaintiff’s procedural due process claims, since the reviews of Plaintiffs’ Ad

Seg placement are discrete acts. See, Gonzalez v. Hasty, 802 F.3d 212, 223 (2d Cir.

2015) (“[A] discrete claim may accrue under the Fifth Amendment each time that a

defendant fails to provide an inmate with the notice, hearing, or evaluation to which he is

entitled after a liberty interest attaches. These denials or failures are discrete acts, which

may combine to form a “serial violation.” But Morgan forecloses the continuing violation

doctrine's application to claims of this nature. [Natl’ R.R. Passenger Corp. v.] Morgan,

536 U.S. [101,] 114–15, 122 S.Ct. 2061 [(2002)].”); see also, Smith v. Annucci, No. 6:18-

CV-06261 EAW, 2019 WL 539935, at *5 (W.D.N.Y. Feb. 11, 2019) (“The procedural due

process violations complained of by Plaintiff in this case, while arguably part of a serial

violation of his constitutional rights, constitute discrete unlawful acts. Plaintiff could have

brought a claim for violation of his right to procedural due process each time his

administrative segregation was continued.”). Consequently, Defendants’ motion to

dismiss is granted as to Plaintiffs’ procedural due process claims that are based on Ad

Seg reviews that took place more than three years prior to the commencement of this

action.

As for Plaintiffs’ remaining claims, Defendants merely assert that Plaintiffs’

“conditions of confinement claims” are also time barred since Plaintiffs could have

challenged the alleged conditions of confinement violations at the time they occurred by

filing either an inmate grievance or an Article 78 proceeding.24 The Court understands

Defendants to argue that Plaintiffs’ claims under the First, Sixth and Eighth Amendments,

as well as their Fourteenth Amendment equal protection and substantive due process

claims, fall outside of the continuing violation doctrine.

However, Defendants have not attempted to explain how Plaintiffs’ Eighth

Amendment Claims and Substantive Due Process Claims, both of which are based on

the long duration and cumulative effects of Plaintiffs’ putatively non-punitive confinement

in SHU, are ineligible for inclusion under the continuing violation doctrine. See, e.g., Smith

v. Annucci, 2019 WL 539935 at *7 (“[U]nlike his procedural due process claim, Plaintiff’s

Eighth Amendment claims state a continuing violation, because they did not accrue until

sufficient time had passed to render Plaintiff’s continued confinement cruel and unusual.

See Gonzalez [v. Hasty] , 802 F.3d [212,] 224 [(2d Cir. 2015)] (“An Eighth Amendment

claim predicated on SHU confinement ... typically accrues only after an inmate has been

confined in the SHU for a prolonged period of time.... [The plaintiff’s Eighth Amendment]

claim as he has pled it, assuming it otherwise is viable, accrued only after the defendants

24 See, Defs. Memo of Law, ECF No. 24-2 at p. 5 (“This is true for both the Due Process claims and

conditions of confinement claims.”).

had confined him in the SHU for some threshold period of time. This renders the

continuing violation doctrine applicable.”)).

Neither have Defendants shown at this stage of the litigation that Plaintiffs’ claims

under the First and Sixth Amendments, or Plaintiffs’ Fourteenth Amendment equal

protection claim, are necessarily time barred, since they did not make any detailed

statute-of-limitations argument concerning those claims in their moving papers25 and did

not file a reply to Plaintiffs’ response. Accordingly, the Court finds that Defendants have

not shown that they are entitled to dismissal on statute of limitations grounds as to those

claims.

To reiterate, insofar as Defendants’ motion to dismiss is based on the statute of

limitations, it is granted as to any procedural due process claims that arose more than

three years prior to the commencement of this action, but is otherwise denied.

The Substantive Due Process Claim26

Defendants next contend that Plaintiffs’ substantive due process claim must be

dismissed since “claims that ad seg violates [inmates’] Substantive Due Process rights

because [the inmates] are not punitively confined yet are subject to SHU conditions ha[ve]

been considered and rejected by numerous courts, both State and Federal.” Phrased in

this manner, Defendants’ argument implies that it is settled law that an inmate placed in

Central Office Ad Seg cannot assert a meritorious substantive due process claim based

on the conditions in SHU.

25 See, Def. Memo of Law [#24-2] at pp. 4-6.

26 Defendants have not offered a basis to dismiss Plaintiffs’ equal protection claims. In that regard, as

part of Defendants’ arguments concerning substantive due process, they make a single passing

reference to “equal protection,” but do not make a reasoned argument for dismissing Plaintiffs’ Equal

Protection claim. ECF No. 24-2 at p. 6.

However, the cases that Defendants have cited are neither binding on this Court

nor apposite to Plaintiffs’ claims in this action. For example, in Matter of Rifkin v. Goord,

273 A.D.2d 878, 880 (4th Dept. 2000), the New York State Supreme Court, Appellate

Division Fourth Department, affirmed the dismissal of a substantive due process claim by

an inmate placed in administrative segregation in the SHU, finding that the inmate did not

have a liberty interest. Id. (“With respect to petitioner's substantive due process rights,

petitioner's placement in administrative segregation does not ‘trigger[ ] due process

protection” because that “segregated confinement [does] not present the type of atypical,

significant deprivation in which a State might conceivably create a liberty interest’ (Sandin

v Conner, 515 US 472, 485-486)”). However, there is no indication that the claim by the

inmate in Rifkin was factually similar to the claims being asserted by Plaintiffs here, which

involve confinement in Ad Seg for decades, allegedly without either procedural due

process protection or any valid penological justification. A second case cited by

Defendants, Tulloch v. Coughlin, 1995 WL 780970 (W.D.N.Y. Dec. 22, 1995), is also

inapposite for the same reasons. In the third and final case cited by Defendants, Rifkin

v. Goord, No. 99-CV-6479, 2005 WL 735943 (W.D.N.Y. Mar. 31, 2005), the federal court

dismissed the inmate plaintiff’s claims on collateral estoppel grounds, without addressing

the merits of his claims.27 Consequently, none of the cases which Defendants have cited

compel the Court to dismiss Plaintiffs’ substantive due process claim.

Defendants nevertheless contend, alternatively, that the substantive due process

27 It is not clear from this decision that Rifkin was even raising a substantive due process claim in federal

court. See, id. However, even if he was, the court granted summary judgment based on the collateral

estoppel procedural bar, without addressing the merits of the claims. Consequently, it is incorrect for

Defendants to argue, as they did in their memo of law, that the “reasoning [of the state court] was upheld”

by the federal court. See, Def. Memo of Law (ECF No. 24-2) at p. 6.

claim fails because Plaintiffs have “not pled a condition which is arbitrary, conscience-

shocking, or oppressive in a constitutional sense.”28 However, treating the factual

allegations in the Complaint as true, as the Court must, the Court cannot say as a matter

of law that Plaintiffs have failed to plead a condition that is shocking to the conscience.

Again, in that regard, Plaintiffs allege that they have been confined in solitary confinement

for decades, without procedural safeguards and without any legitimate penological

justification. Moreover, the Complaint alleges that Defendants have confined Plaintiffs in

this manner despite knowing the harmful effects of such long-term solitary confinement.

Finally, Defendants contend that the Court should dismiss the substantive due

process claim because even assuming that decades-long solitary confinement is

potentially harmful to inmates’ mental health, Plaintiffs have not alleged that they

personally suffered mental health injury due to their Ad Seg confinement in SHU.

However, the Court again disagrees with Defendants and finds that the reasonable

inference from the facts alleged in the Complaint is that Plaintiffs personally suffered

negative effects from their long-term confinement in SHU. See, e.g., Complaint at ¶ 131

(“Defendants’ actions have caused the named . . . Plaintiffs untold misery and suffering

due solely to Plaintiffs’ confinement to SHU, despite knowing the harmful effects of long-

term SHU confinement.”); see also id. at ¶ ¶ 14-16, 20, 80-90, 124-125 (alleging effects

of long-term SHU confinement).

For these various reasons Defendants’ motion to dismiss the substantive due

process claim is denied.29

28 Def. memo of Law (ECF No. 24-2) at p. 7.

29 In finding that Defendants have not shown their entitlement to dismissal of the claim, the Court is not

expressing any view concerning the claim’s ability to withstand arguments that Defendants did not make.

See, e.g., H'Shaka v. O'Gorman, 444 F. Supp. 3d 355, 371 (N.D.N.Y. 2020) (“The Court finds that

Qualified Immunity

Defendants next maintain that the “substantive due process claims and conditions

of confinement claims” should be dismissed based on the concept of qualified immunity,

which is an affirmative defense to claims for money damages under Section 1983:

Section 1983 establishes a private right of action for money damages

against state officials, acting “under color” of law, who violate a

constitutional or statutory right. 42 U.S.C. § 1983. This “deter[s]

governmental abuse and remed[ies] unlawful governmental

transgressions.” [Johnson v.] Newburgh [Enlarged Sch. Dist.,] 239 F.3d

[246,] 250 [(2d Cir. 2001)]. At the same time, “permitting damages suits

against government officials can entail substantial social costs, including

the risk that fear of personal monetary liability and harassing litigation will

unduly inhibit officials in the discharge of their duties.” Anderson v.

Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). To

balance the need for accountability and the potential chilling effect, “the

Supreme Court established qualified immunity as an affirmative defense to

§ 1983 claims.” Newburgh, 239 F.3d at 250. This defense is designed to

“reduce[ ] the general costs of subjecting officials to the risks of trial” by

immunizing them from monetary liability “based on unsettled rights.”

Connell v. Signoracci, 153 F.3d 74, 79 (2d Cir. 1998) (internal quotation

marks omitted).

Officers are entitled to qualified immunity “unless a plaintiff pleads facts

showing (1) that the official violated a statutory or constitutional right, and

(2) that the right was ‘clearly established’ at the time of the challenged

conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735, 131 S.Ct. 2074, 179

L.Ed.2d 1149 (2011) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102

S.Ct. 2727, 73 L.Ed.2d 396 (1982) ).

Edrei v. Maguire, 892 F.3d 525, 532 (2d Cir. 2018).

Motions to dismiss under Rule 12(b)(6) based on qualified immunity are not

Plaintiff's claims of unconstitutional conditions of confinement and deliberate indifference to his medical

needs are all encompassed by a more specific constitutional provision–the Eighth Amendment–and, as a

result, the Substantive Due Process Clause is not the appropriate vehicle for those claims.”) (collecting

cases).

typically granted, owing to the often fact-intensive nature of the defense. See, e.g.,

Hanson v. LeVan, 967 F.3d 584, 597 (7th Cir. 2020) (Referring to “the mismatch between

the 12(b)(6) plausibility standard and the often fact-intensive nature of qualified-immunity

inquiries.”). However, such a dismissal under Rule 12(b)(6) may be appropriate where,

for example, a defendant can demonstrate that, as a matter of law, the constitutional right

that is alleged to have been violated was not “clearly established” at the time of the alleged

violation:

Although the applicability of a qualified immunity defense is often fact-

intensive, “if, upon drawing every factual inference in favor of the plaintiff,

the question is purely the state of the law at the time of a defendant's

allegedly tortious conduct, so that the court can determine whether a

reasonable state agent should have known that what he was doing violated

the law, then a court can determine the availability of qualified immunity on

a motion to dismiss under Rule 12(b)(6).” Birch v. City of New York, 184 F.

Supp. 3d 21, 28 (E.D.N.Y. 2016), aff'd, 675 F. App'x 43 (2d Cir. 2017).

Schultz v. Cty. of Suffolk, No. 19CV0925JMAARL, 2020 WL 7699944, at *7 (E.D.N.Y.

Sept. 4, 2020), report and recommendation adopted, No. 19CV925JMAARL, 2020 WL

7041090 (E.D.N.Y. Nov. 30, 2020).

In deciding whether a plaintiff’s purported Section 1983 claim is based on a “clearly

established” right, a court must determine whether the state of the law was sufficiently

clear at the relevant time that any reasonable defendant would have known that his

actions were unlawful:

To be sure, “a case directly on point” is not required “for a right to be clearly

established.” White v. Pauly, ––– U.S. ––––, 137 S. Ct. 548, 551, 196

L.Ed.2d 463 (2017) (per curiam). At the same time, “existing precedent must

have placed the statutory or constitutional question beyond debate.” Id.

(emphasis added). “‘Clearly established’ means that, at the time of the

officer's conduct, the law was sufficiently clear that every ‘reasonable official

would understand that what he is doing’ is unlawful.” Wesby, 138 S. Ct. at

589 (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131 S.Ct. 2074, 179

L.Ed.2d 1149 (2011)). In practice, this means that “‘controlling authority’ or

‘a robust consensus of cases of persuasive authority’” dictate the action at

issue. Id. at 589–90 (quoting al-Kidd, 563 U.S. at 741–42, 131 S.Ct. 2074).

A plaintiff must show with a high “degree of specificity,” Mullenix v. Luna,

577 U.S. 7, 136 S. Ct. 305, 309, 193 L.Ed.2d 255 (2015) (per curiam), that

the rule he seeks to apply prohibited the officer's conduct. See Wesby, 138

S. Ct. at 590; see also City and County of San Francisco v. Sheehan, 575

U.S. 600, 135 S. Ct. 1765, 1775–76, 191 L.Ed.2d 856 (2015) (noting that

the Supreme Court has “repeatedly told courts ... not to define clearly

established law at a high level of generality”). In other words, an official is

immune from liability unless, under the particular circumstances the official

faced, any “reasonable offic[ial]” would have “known for certain that the

conduct was unlawful” under then-existing precedent. Ziglar v. Abbasi, –––

U.S. ––––, 137 S. Ct. 1843, 1867, 198 L.Ed.2d 290 (2017).

Liberian Cmty. Ass'n of Connecticut v. Lamont, 970 F.3d 174, 186–87 (2d Cir. 2020); see

also, Ziglar v. Abbasi, 137 S. Ct. at 1866–67 (“It is not necessary, of course, that the very

action in question has previously been held unlawful. That is, an officer might lose

qualified immunity even if there is no reported case directly on point. But in the light of

pre-existing law, the unlawfulness of the officer's conduct must be apparent. . . .

[Q]ualified immunity protects all but the plainly incompetent or those who knowingly

violate the law.”) (citations and internal quotation marks omitted).

In the instant action, Defendants contend that there is no “binding precedent” that

would have alerted them that their actions were unlawful. In doing so, Defendants frame

the issues by stating that,

[r]egarding conditions of confinement, the question presented is whether

there is plain, legally binding precedent holding that keeping ad seg inmates

in the conditions required by § 7 N.Y.C.R.R. 301.4(c) is unconstitutional.

Regarding substantive Due Process, the question presented is whether

there is plain binding precedent holding that keeping an inmate in ad seg

for an extended period of time based on the recommendations of security

experts is unconstitutional.

Def. Memo of Law (ECF No. 24-2) at p. 9.

However, the Court finds that “drawing every factual inference in favor of the

plaintiffs,” Defendants have not shown that they are entitled to dismissal based on

qualified immunity. Indeed, Defendants have framed the issues incompletely, in a

manner that overlooks Plaintiffs’ factual allegations which, if proven, could establish that

Plaintiffs were kept in Ad Seg in violation of their procedural due process rights and other

rights that were clearly established at the relevant time. See, Smith v. Annucci, No. 6:18-

CV-06261 EAW, 2019 WL 539935, at *7 (W.D.N.Y. Feb. 11, 2019) (“Here, the Court finds

that there are issues of fact regarding Defendants' entitlement to qualified immunity. . . .

If, as Plaintiff alleges, Defendants knowingly confined him in administrative segregation

for multiple decades strictly for punitive reasons and without penological justification, the

Court cannot conclude, at this stage of the proceedings, that qualified immunity would

shield those actions.”); see also, id. (“Plaintiff’s Eighth Amendment claims are intertwined

with his procedural due process claims – if Defendants have failed to provide any

meaningful review of Plaintiff’s status for more than 20 years but have instead held him

in administrative segregation for solely punitive reasons, his right to due process and his

right to be free from cruel and unusual punishment are both implicated.”); H'Shaka v.

O'Gorman, 444 F. Supp. 3d 355, 389–90 (N.D.N.Y. 2020) (“Faced with the questions of

fact that remain to be resolved in this case, the Court finds that it would be inappropriate

to conclude that Defendants are entitled to the protection of qualified immunity at this

stage of the litigation. In particular, the Court notes that, although Proctor was decided in

2017 (after Plaintiff had already been in Ad Seg for a significant period of time, but still

relevant to a portion of the period covered by this litigation), it was already well established

that due process must be afforded in a “meaningful manner.” Armstrong v. Manzo, 380

U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965); accord Parratt v. Taylor, 451 U.S.

527, 540, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981); Mathews v. Eldridge, 424 U.S. 319,

333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); Goldberg v. Kelly, 397 U.S. 254, 267, 90 S.Ct.

1011, 25 L.Ed.2d 287 (1970). Therefore, if a factfinder were to conclude that the Ad Seg

reviews were guided by a pre-determined conclusion rather than a fair assessment of the

facts, it would arguably mean that Defendants did not afford due process in a meaningful

manner. Additionally, as already discussed, the Supreme Court indicated in 2002 (well

before Plaintiff was placed in Ad Seg) that the Eighth Amendment is violated by conditions

that are totally without penological justification, and there remain material disputes of fact

as to whether there was a legitimate penological justification for Plaintiff's continued

retention in Ad Seg. Hope, 536 U.S. at 737, 122 S.Ct. 2508. As a result, Defendants

could be potentially found to have violated clearly established law depending on how a

factfinder were to resolve the disputed issues of fact.”). Consequently, Defendants’

motion is denied insofar as it is based on qualified immunity.

Procedural Due Process

Finally, Defendants maintain that they are entitled to dismissal of Hart’s procedural

due process claims as a matter of law, purportedly since “the relevant reports

demonstrate that all three Proctor criteria were met, and none of these factors relied upon

by the Proctor court to find a question of fact are present here.” Def. Memo of Law (ECF

No. 24-2) at p. 11. (Defendants have not similarly moved against Ryan’s procedural due

process claim)30 In this regard, Defendants are referring to the relevant analysis set forth

30 Defendants’ motion (ECF No. 24) does not seek dismissal of Plaintiff Ryan’s procedural due process

claims, except insofar as they may have accrued more than three years prior to the commencement of

by the Second Circuit in Proctor, cited earlier, for evaluating procedural due process

claims involving inmates kept in Central Office Ad Seg:

[M]eaningful 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. It is not sufficient for

officials to go through the motions of nominally conducting a review meeting

when they have developed a pre-review conclusion that the inmate will be

confined in Ad Seg no matter what the evidence shows. Review with a pre-

ordained outcome is tantamount to no review at all.

Second, the reviewing officials must evaluate whether the justification for

Ad Seg exists at the time of the review or will exist in the future, and consider

new relevant evidence as it becomes available. [Periodic] Ad Seg reviews

may not be frozen in time, forever rehashing information addressed at the

inmate’s initial Ad Seg determination. Rather, reviews must take into

account prison conditions and inmate behavior as they change over time;

those changes may modify the calculus of whether the inmate presents a

current threat to the safety of the facility. The [relevant question] is not

whether the confined inmate was a threat to the facility when he was

confined initially; it is whether the inmate “remains a security risk” on the

date of the periodic review. This is not to say that prison officials are barred

from according significant weight to events that occurred in the past. Neither

do we suggest that recent events categorically ought to be more salient in

periodic reviews than those that occurred long ago. We conclude merely

that prison officials must look to the inmate’s present and future behavior

and consider new events to some degree to ensure that prison officials do

not use past events alone to justify indefinite confinement.

Third and finally, the reviewing officials must maintain institutional safety

and security (or another valid administrative justification) as their guiding

principles 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 may not use Ad Seg as a

charade in the name of prison security to mask indefinite punishment for

past transgressions.

this action. See, ECF No. 24-2 at p. 12 (“The Complaint should be dismissed as to all claims except

Plaintiff Ryan’s procedural Due Process claims beginning December 12, 2013.”).

Proctor v. LeClaire, 846 F.3d at 610–11 (citations omitted).

Defendants assert that the documentation which they have submitted establishes

that Hart received meaningful review of his Ad Seg status as required by Proctor.

Defendants essentially contend that the Court must accept the reasons set forth in the Ad

Seg review documents at face value, since the Court is not permitted to review the

“substance” of the committees’ decisions. On this point, the Second Circuit in Proctor

stated:

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 the Defendants’ decision to confine Proctor in Ad Seg. We

may not substitute our judgment for Defendants’, nor may we rebalance the

section 301.4(d) criteria. The Due Process Clause permits only an

evaluation of whether Defendants’ method of coming to their Ad Seg

determination is sufficient.

Proctor, 846 F.3d at 608. Defendants interpret this to mean, for example, that the Court

must ignore Plaintiffs’ assertions that Hart’s review documentation contains false and

misleading information. See, Def. Memo of Law (ECF No. 24-2) at p. 11 (“Plaintiff Hart’s

response [maintains] that the [committees’] allegations pertaining to his behavior were

untrue or pretextual. In doing so, he asks the Court to do precisely what may not take

place on a procedural Due Process claim; to review the substance of the decision, to

substitute its judgment for that of Attica security and administrative staff, and to accord

staff’s decision no deference at all.”).

However, Defendants are incorrect on this point. Plaintiffs are not asking the Court

to substitute its judgment or to re-balance the section 301.4(d) criteria. Rather, Plaintiffs

are challenging the methods that Defendants used, which is plainly permitted by Proctor.

Indeed, the factual assertions by Plaintiffs here relating to those methods are quite similar

to the ones that survived summary judgment in Proctor. The Complaint alleges, for

example, that the review documentation contains fabricated accounts of misbehavior by

Hart; that the reports frequently merely repeat information from earlier reports often

utilizing identical language; that the reports themselves indicate that committee members

never actually met to discuss Hart’s situation; that the reports are really focused just on

the conduct that resulted in Hart being placed in Ad Seg in the first place, and not on

whether he presently poses any danger if released from Ad Seg; that Ad Seg inmates

have no “goalposts” by which to earn their release from Ad Seg; and that no prisoner

confined to Ad Seg for escape has ever been released from Ad Seg.

In sum, the Court finds that Defendants’ motion to dismiss Hart’s procedural due

process claim must be denied since there are issues of fact as to whether the periodic

reviews that he received comport with the requirements set forth in Proctor. See, e.g.,

Smith v. Annucci, 2019 WL 539935, at *4 (“Here, Plaintiff alleges that he has been

deprived of any meaningful review of his continued confinement in administrative

segregation, that Defendants have pre-ordained that he will remain in administrative

segregation indefinitely, and that Defendants have failed to take into new relevant

information regarding his dangerousness (or lack thereof) as it has become available. As

assessed against the standards set forth in Proctor, Plaintiff has clearly set forth a viable

procedural due process claim.”); see also, Walker v. Bellnier, No. 917CV1008GTSCFH,

2019 WL 2479612, at *8 (N.D.N.Y. Jan. 15, 2019) (“Although similar language in periodic

reviews “does not necessarily mean that the reviews” are a “sham,” see Zimmerman v.

Seyfert, No. 9:03-CV-1389 (TJM), 2007 WL 2080517, at *19 (N.D.N.Y. July 19, 2007),

taking the allegations in the Amended Complaint as true, at this stage in the litigation, the

facts suggest that Defendants did not provide Walker with meaningful, periodic reviews

regarding his continued administrative confinement.”), report and recommendation

adopted, No. 917CV1008GTSCFH, 2019 WL 1305825 (N.D.N.Y. Mar. 22, 2019).

CONCLUSION

Defendants’ motion to strike (ECF No. 34) is denied. Defendants’ motion to

dismiss (ECF No. 33) is granted in part, and any procedural due process claim that

accrued prior to December 12, 2013 is dismissed. Otherwise, Defendants’ motion to

dismiss is denied.

SO ORDERED.

Dated: Rochester, New York

July 15, 2021

ENTER:

Nea, ean

CHARLES. SIRAGGS

United States District ge

32