Giano v. Selsky

238 F.3d 223, 2001 WL 50860
CourtCourt of Appeals for the Second Circuit
DecidedJanuary 23, 2001
DocketNo. 99-0255
StatusPublished
Cited by102 cases

This text of 238 F.3d 223 (Giano v. Selsky) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Giano v. Selsky, 238 F.3d 223, 2001 WL 50860 (2d Cir. 2001).

Opinion

OAKES, Senior Circuit Judge:

Julio Giano, appellant pro se, brought an action against various employees of the New York State Department of Correctional Services (collectively “defendants”), alleging that his due process rights were violated when he was placed in administrative segregation as a prisoner at the Clinton Correctional Facility. The United States District Court for the Northern District of New York, Lawrence E. Kahn, Judge, granted summary judgment to the defendants because it found that Giano’s confinement did not constitute an “atypical and significant hardship” implicating due process concerns. In this appeal, Giano makes several arguments, the most cogent of which is that the district court should have considered his previous 670 day administrative segregation at the Attica Correctional Facility in its hardship analysis. Because we find that Giano’s cumulative confinement at Attica and Clinton implicated a liberty interest, we vacate the grant of summary judgment and remand to the district court for further consideration.

BACKGROUND

Giano has been incarcerated since 1985 on a variety of charges, including a charge based on his escape from Sing Sing Correctional Facility in December 1986. After Giano was recaptured, he was sentenced to five years in the Special Housing Unit (SHU) at Sing Sing, where he spent approximately one year before being transferred to the SHU at Shawangunk Correctional Facility. After another nine months in Shawangunk’s SHU and Close Supervision Unit (CSU), Giano was released into the prison’s general population and, shortly thereafter, was stabbed by another inmate.

As a result of the stabbing and its aftermath, Giano was transferred to Attica, where he was placed under administrative [225]*225segregation in that facility’s SHU. The two reasons given for the segregation were that he had been stabbed by an unknown inmate and that he was a high escape risk based on his successful escape from Sing Sing. Giano remained in administrative segregation at Attica for 670 days before being transferred to Clinton.

Upon his arrival at Clinton in August 1990, Giano was placed in administrative segregation in the SHU, maintaining the prisoner status he had at Attica. His segregated status was retained on the rationale that Giano’s prior escape made him a possible threat to the safety and security of the facility. He remained there for 92 days under conditions similar to those he had endured at Attica, which included: (1) confinement to an isolated cell for 23 hours a day; (2) one visit per week; (3) denial of personal property, telephone, commissary, and receipt of package privileges; and (4) denial of participation in educational, rehabilitative, and religious programs. Giano also spent 33 days in protective custody in the SHU before he was released into the general population in December 1990.

In 1991, Giano filed a pro se complaint pursuant to 42 U.S.C. § 1983, alleging that the defendants had violated his due process rights by wrongfully placing him in administrative segregation and protective custody in the SHU for a total of 125 days. In April 1998, defendants moved for summary judgment on six grounds, including the ground that Giano had failed to show that his confinement in the SHU constituted an atypical and significant hardship sufficient to create a liberty interest. In July 1999, the district court granted summary judgment to the defendants on that ground, ruling that Giano’s 92 days of administrative segregation could not be considered an atypical hardship. In reaching this conclusion, the district court declined to aggregate the 670 days Giano spent in administrative segregation at Attica. This appeal followed.

DISCUSSION

We note at the outset that because Gi-ano is appealing a grant of summary judgment, our review of the district court’s decision is de novo. See Doe v. Simon, 221 F.3d 137, 139 (2d Cir.2000).

As the district court correctly stated, “to present a due process claim, a plaintiff must establish (1) that he possessed a liberty interest and (2) that the defendant(s) deprived him of that interest as a result of insufficient process.” Giano v. Selsky, 37 F.Supp.2d 162, 167 (N.D.N.Y.1999) (citing Bedoya v. Coughlin, 91 F.3d 349, 351-52 (2d Cir.1996)). To determine whether a liberty interest exists under state law, the court must analyze whether the restraint at issue “imposes 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); see also Welch v. Bartlett, 196 F.3d 389, 392 (2d Cir.1999). As framed by the district court in this case, its inquiry under Sandin was as follows:

[Wjhether the duration of plaintiffs actual period of administrative or disciplinary confinement and the conditions thereof are so different from conditions manifest in both the general population of the prison and other segregative housing as to give rise to a liberty interest.

37 F.Supp.2d at 168.

In determining the duration of Giano’s confinement, the district court limited its inquiry to the 92 days Giano spent in administrative segregation at Clinton. The court did not consider the 670 days Giano spent in administrative segregation at Attica because this confinement was the subject of separate litigation and the court did not want to “create a risk of inconsistent adjudications.” Id. at 171.1

[226]*226Although we acknowledge the concerns that prevented the district court from considering the Attica segregation, we find that Giano’s periods of confinement at Clinton and Attica must be considered in the aggregate. As we recently-suggested in Sims v. Artuz, 230 F.3d 14, 23-24 (2d Cir.2000), separate SHU sentences “should be aggregated for purposes of the Sandin inquiry” when they constitute a sustained period of confinement. Id.; see also Sealey v. Giltner, 197 F.3d 578, 587-88 (2d Cir.1999) (aggregating two periods of SHU segregation). We view such an aggregation as particularly appropriate here, where it is clear that Giano’s segregation at Clinton was simply a continuation of his segregation at Attica. A review of the record indicates that the two periods of confinement were based on the same administrative rationale and that the conditions of Giano’s confinement were, for all practical purposes, identical at both facilities. Under these circumstances, Giano’s two sentences of administrative segregation must be considered cumulatively for purposes of the Sandin analysis, although Giano will not be allowed a double recovery for the Attica sentence. See n. 1, supra.

Giano’s aggregated period of confinement in SHU added up to 762 days— slightly over two years.

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Bluebook (online)
238 F.3d 223, 2001 WL 50860, Counsel Stack Legal Research, https://law.counselstack.com/opinion/giano-v-selsky-ca2-2001.