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Consecutive Ad Seg Placements From Same Cause Are Aggregated for "Atypical Hardship" Analysis

Consecutive Ad Seg Placements From Same Cause Are Aggregated For "Atypical Hardship" Analysis

The Second Circuit U.S. Court of Appeals held that where a prisoner suffered 670 days of administrative segregation (Ad Seg) placement at one prison and when transferred to another prison was placed in continuing Ad Seg for another 92 days without new cause, the analysis of his Sandin -based "atypical hardship" complaint would be based on the aggregate duration of all his Ad Seg time, not just the Ad Seg time at the new prison.

New York state prisoner Julio Giano presented a challenge to prison officials as to proper housing. On the one hand, he was an escape risk from his prior escape from Sing Sing prison, while on the other hand, he was stabbed by another prisoner shortly after being placed in the general population. But whatever their rationale, prison officials kept him for 670 days in Ad Seg conditions of 23 hour per day lockup, one visit per week, no personal property, no phone calls, no commissary, no packages, and no participation in educational, rehabilitative or religious programs.

Giano filed several 42 USC § 1983 complaints as a result, some of which overlapped adjudication of the previous filings. The instant case complained of 670 days of Ad Seg time at Attica Correctional Facility followed by 92 days more Ad Seg time after he was transferred to Clinton Correctional Facility.

The district court analyzed his complaint under the "atypical hardship" standard set forth in Sandin v. Connor , 515 US 472, 484 (1995), but considered only his Clinton Ad Seg time of 92 days. (See: Giano v. Selsky , 37 F.Supp.2d 162, 168 (N.D.N.Y. 1999)). Part of the district court's reasoning was its jurisdictional concern that Giano had another § 1983 complaint on just his Attica time still pending in the Western District of New York district court.

Nonetheless, the Second Circuit, relying on its own recent precedent in Sims v. Artuz , 230 F.3d 14, 2324 (2d. Cir. 2000) held that "separate [Ad Seg] sentences should be aggregated for purposes of the Sandin inquiry." This was particularly apropos, where, as here, the second confinement was simply a continuation of the first _ having been based on the same administrative rationale and yielding essentially the same conditions of confinement.

Following Second Circuit precedent that a 305 day Ad Seg confinement was excessive under Sandin (Colon v. Howard , 215 F.3d 227, 231 (2d. Cir. 2000)), Giano meanwhile prevailed in his Attica-only litigation ( Giano v. Kelley , 2000 WL 876855, W.D.N.Y., May 16, 2000; $19,400 damage award). The Court ruled that he should similarly not be foreclosed here.

Accordingly, the Court vacated the summary judgment below and remanded to the district court to additionally determine, per Sandin , if procedural due process violations had attended his Ad Seg placement at Clinton. See : Giano v. Selsky , 238 F.3d 223 (2d. Cir. 2001).

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Related legal case

Giano v. Selsky

Giano v. Selsky, 238 F.3d 223, 238 F.3d 223 (2d Cir. 01/23/2001)

[1] U.S. Court of Appeals, Second Circuit

[2] Docket No. 99-0255

[3] 238 F.3d 223, 238 F.3d 223, 2001

[4] January 23, 2001


[6] Julio Giano, Plaintiff-Appellant, pro se. Kathleen M. Treasure, Assistant Solicitor General, Albany, NY (Eliot Spitzer, Attorney General, Nancy A. Spiegel, Assistant Solicitor General), for Defendants-Appellees.

[7] Before Oakes, Kearse and Winter, Circuit Judges.

[8] The opinion of the court was delivered by: Oakes, Senior Circuit Judge

[9] Submitted December 8, 2000

[10] Appellant, a state prisoner, brought an action alleging his due process rights were violated when he was placed in administrative segregation. The United States District Court for the Northern District of New York, Lawrence E. Kahn, Judge, granted summary judgment to the defendants, finding that appellant's confinement did not give rise to a liberty interest triggering due process concerns.

[11] Vacated and remanded.

[12] 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.


[14] 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.

[15] As a result of the stabbing and its aftermath, Giano was transferred to Attica, where he was placed under administrative segregation 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.

[16] 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:

[17] (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.

[18] 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.


[20] We note at the outset that because Giano 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).

[21] 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 (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:

[22] [W]hether the duration of plaintiff's 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.

[23] 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. *fn1

[24] Although 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, 23-34 (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.

[25] Giano's aggregated period of confinement in SHU added up to 762 days -- slightly over two years. We have held that "[c]onfinement in normal SHU conditions for 305 days is in our judgment a sufficient departure from the ordinary incidents of prison life to require procedural due process protections under Sandin." Colon v. Howard, 215 F.3d 227, 231 (2d Cir. 2000); see also Sims, 230 F.3d at 23 (sentence of one year was "of sufficient length to be atypical and significant"). It is therefore no surprise that Giano prevailed in the Attica litigation, where it was found that his 670 days of confinement at that facility imposed an atypical and significant hardship sufficient to create a liberty interest. See Giano v. Kelley, 2000 WL 876855 at *8.

[26] We reach the same conclusion with respect to the 92-day continuation of Giano's confinement, which extended his already lengthy sentence even further beyond the threshold for atypicality. We hold that Giano's continued segregation at Clinton created a liberty interest that implicated due process concerns. See Sealey, 197 F.3d at 587 n.7 (suggesting that procedural due process must be afforded when a second interval of confinement, when aggregated with the first, exceeds by even one day the duration deemed atypical).

[27] Finding that Giano possessed a liberty interest does not end the due process inquiry, however. Because it found that no liberty interest existed in this case, the district court did not consider whether procedural due process was provided to Giano with respect to his administrative segregation at Clinton. We therefore must return this case to the district court for further proceedings under the second prong of the due process analysis. *fn2


[29] The grant of summary judgment to the defendants is vacated, and the case is remanded for further proceedings consistent with this opinion.


Opinion Footnotes


[30] *fn1 In 1989, Giano filed a separate § 1983 action in the Western District of New York, challenging his administrative segregation at Attica. In that action, Giano was found to have suffered an atypical and significant hardship and was awarded $19,400 in damages. See Giano v. Kelly, No. 89- CV-727(C), 2000 WL 876855 (W.D.N.Y. May 16, 2000).

[31] *fn2 Although we do not have a full account of the process given to Giano by the defendants here, we note that the favorable decision Giano received for his Attica confinement may entitle him on remand to argue collateral estoppel with respect to the procedural due process issue.