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Emmanuel D. Patterson v. Thomas A. Coughlin, Iii, Charles P. Hernandez (Sic Charles P. Hermanderz), Harold J. Smith, N. Desantos, 761 F.2d 886, 2d Cir. (1985)
Emmanuel D. Patterson v. Thomas A. Coughlin, Iii, Charles P. Hernandez (Sic Charles P. Hermanderz), Harold J. Smith, N. Desantos, 761 F.2d 886, 2d Cir. (1985)
2d 886
I.
For purposes of this appeal we accept as true the allegations set forth in the
complaint. We summarize only those facts and prior proceedings believed
necessary to an understanding of our rulings on the legal issues raised on
appeal.
Appellant Emmanuel D. Patterson is, and at all times relevant to this action
was, an inmate of the Attica Correctional Facility at Attica, New York.
Appellees are Thomas A. Coughlin III, the Commissioner of the New York
State Department of Correctional Services; Harold J. Smith, the Commissioner
of the Attica Correctional Facility; Charles P. Hernandez, Director of the
Special Housing Review Board; and N. DeSantos, a Captain at Attica.
On April 9, 1982, a fight broke out between two other inmates at Attica.
Appellant, who asserts that he was not involved in the altercation, was placed in
the facility's Special Housing Unit (SHU). On April 12, appellant appeared
before the Prison Adjustment Committee and was charged with "Assault 1.5
and Interference with an employee 1.75". A Superintendent's Hearing was
convened on April 16 to consider the charges but was adjourned until April 20.
Appellee DeSantos was the hearing officer at the April 20 hearing. The only
witness who testified was the guard who claimed to be the subject of appellant's
alleged assault. Appellant was not permitted to call any witnesses in his defense
nor did DeSantos interview any such witnesses. Appellant was found guilty of
both charges. He was sentenced to confinement in the SHU for sixty days and
loss of sixty days "good time". Appellant appealed the decision at the
Superintendent's Hearing to appellees Smith and Coughlin. On July 21, 1982,
that decision was affirmed by the Housing Review Board.
On or about April 6, 1983, appellant filed his pro se complaint, on a form used
by prisoners who are not represented by counsel, in the District Court for the
Western District of New York. At the same time, he moved for leave to
proceed in forma pauperis and for appointment of counsel; on May 10, 1983,
Judge Telesca granted the former, but denied the latter. 2
10
"In the present case, plaintiff alleges that defendants failed to strictly comply
with the procedures established in New York's Code of Rules and Regulations
for Confinement in a Special Housing Unit. Because the procedures existed, but
were allegedly not followed, no meaningful predeprivation hearing was
possible.... Plaintiff did seek redress pursuant to New York Civil Practice Law
and Rules Article 78 to force defendants to comply with the established
procedures and thus, was given an opportunity to be heard at a meaningful time
and in a meaningful manner."
11
As indicated above, we reverse and remand, for the reasons stated below.
II.
12
Recovery under 42 U.S.C. Sec. 1983 (1982) is premised upon a showing, first,
that the defendant has denied the plaintiff a constitutional or federal statutory
right and, second, that such denial was effected under color of state law.
Adickes v. S.H. Kress & Co., 398 U.S. 144, 150 (1970). Appellant here alleges
a deprivation of his liberty interest and a denial of the procedural safeguards
guaranteed by the due process clause of the Fourteenth Amendment. That the
liberty interest at issue here is of constitutional dimension is not contested. E.g.,
Hewitt v. Helms, 459 U.S. 460, 472 (1983); Sher v. Coughlin, 739 F.2d 77, 81
(2 Cir.1984). Moreover, it is not claimed that the officials' conduct did not
amount to "state action", which is a prerequisite to finding a constitutional
violation, or that it did not occur under color of state law. The only issue
presented for our decision, therefore, is whether, upon the facts alleged in the
complaint, there has been a denial of constitutionally-mandated procedures.
13
14
15
In the instant case, appellees "concede[ ] that the [appellant] was placed in SHU
and deprived of his liberty after a Superintendent's Proceeding which failed in
certain particulars to conform to the requirements of procedural due process
established in Wolff v. McDonnell, 418 U.S. 539 (1974)." Appellees argue,
despite the conceded infirmities in the predeprivation hearing, that no due
process violation resulted from the hearing officer's failure to follow the state's
own rules, which conform to the requirements set forth in Wolff. The district
court held that "[b]ecause the procedures existed, but were allegedly not
followed, no meaningful predeprivation hearing was possible." Appellees urge
this proposition on appeal. They further urge that the Article 78 postdeprivation
remedy, the mere threat of which resulted in appellees stipulating to appellant's
release after 65 days confinement, was sufficient to satisfy due process.
Appellees place heavy reliance on Parratt v. Taylor, 451 U.S. 527 (1981). We
fail to see either the logic of appellees' argument or the connection between the
instant case and Parratt or the Supreme Court's subsequent decision in Hudson
v. Palmer, 468 U.S. ----, 104 S.Ct. 3194 (1984).
17
Although a state employee's failure to conform to state law does not in itself
violate the Constitution and is not alone actionable under Sec. 1983, Davis v.
Scherer, 468 U.S. ----, ----, 104 S.Ct. 3012, 3019 (1984); Pollnow v. Glennon,
757 F.2d 496, 501 (2 Cir.1985), the state regulation that was violated in the
instant case merely reiterated what already was required by the Constitution. It
has long been settled that unconstitutional conduct that also violates state law is
still actionable under Sec. 1983, e.g., Monroe v. Pape, 365 U.S. 167, 187
(1961); Screws v. United States, 325 U.S. 91, 109-11 (1945) (plurality
opinion); United States v. Classic, 313 U.S. 299, 326 (1941); Home Tel. & Tel.
Co. v. Los Angeles, 227 U.S. 278, 282-85 (1913), and that exhaustion of state
tort and administrative remedies is not required. Monroe, supra, 365 U.S. at
183; Patsy v. Board of Regents, 457 U.S. 496, 516 (1982).
18
supra, 365 U.S. at 172; Home Tel. & Tel. Co., supra, 227 U.S. at 278, 282-85;
Mansell v. Saunders, 372 F.2d 573, 576 (5 Cir.1967).4 The requirements of the
due process clauses are directed specifically to the federal and state
governments. They require the promulgation of laws and regulations providing
for regular procedures which the government must follow before it may deprive
an individual of life, liberty or property. The execution of those laws and
regulations also must conform to due process; otherwise the due process clause,
with its guarantees of regular and predictable procedures, becomes a cipher. It
is beyond cavil that due process requires more than the mere promulgation of
laws and regulations which, if followed, would preserve the most fundamental
of rights.
19
In Parratt, the Supreme Court based its decision, in part, on the fact that "the
deprivation occurred as a result of the unauthorized failure of agents of the
State to follow established state procedure." Parratt, supra, 451 U.S. at 543.
Appellees here argue, based on this statement, that no predeprivation hearing
was possible in the instant case because the procedures provided for by the
state were not followed.
20
First, appellees, and the district court, apparently confuse the deprivation of a
liberty interest with the denial of the constitutional right to procedural
safeguards which is implicated by that interest. It must be remembered that the
Constitution does not prohibit deprivations of liberty per se. The Constitution
prohibits deprivations of liberty without due process. The denial of a
constitutionally-sound predeprivation hearing is a separate and distinct injury
from the loss of liberty.
21
Second, although the denial of due process may have been "unauthorized", the
deprivation of liberty at issue here does not appear to have been "unauthorized"
as that term is meant by Parratt. Hudson v. Palmer, supra, makes clear that the
question of whether the deprivation of a protected interest was negligent or
intentional is not of constitutional dimension. What does matter, however, is
whether the conduct of the state's agent that resulted in the deprivation was
such as to make the injury unforeseeable when viewed from the position of one
who possesses the state-delegated authority to grant a hearing when
circumstances and the Constitution so require. It is at least a question of fact
whether the decision to place appellant in the SHU was made by "officials with
final authority" over that decision. Burtnieks v. City of New York, 716 F.2d
982, 986 (2 Cir.1983). Unlike the deprivation of property that occurred in
Parratt, here the responsible state officials who had the power to grant appellant
a hearing obviously knew that appellant was in peril of being deprived of his
liberty interest. In fact, he was given a hearing, albeit a deficient one. Thus, the
Finally, Parratt did not alter the fundamental tenets of due process. Parratt,
supra, 451 U.S. at 544. Absent some exigency that requires summary action by
the state, e.g., Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594 (1950);
North American Cold Storage Co. v. Chicago, 211 U.S. 306 (1908), or
circumstances that render a predeprivation hearing impossible as a practical
matter as in Parratt, the opportunity to be heard before the state deprives an
individual of life, liberty or property is still the 'root requirement' of the due
process clause. Loudermill, supra, --- U.S. at ----, 105 S.Ct. at 1493, quoting
Boddie v. Connecticut, 401 U.S. 371, 379 (1972). It is abundantly clear that
disciplinary segregation implicates a sufficiently strong liberty interest as to
require notice of the charges and, as the word "hearing" suggests, some
opportunity to present a defense. Wolff, supra, 418 U.S. at 563-72; McCann v.
Coughlin, supra, 698 F.2d at 121; Powell v. Ward, supra, 542 F.2d at 104. The
opportunity to be heard at a meaningful time and in a meaningful manner has
not been satisfied when the first such real opportunity is afforded after an
inmate has already been in the SHU for 65 days. "The point is straightforward:
the Due Process Clause provides that certain substantive rights--life, liberty,
and property--cannot be deprived except pursuant to constitutionally adequate
procedures." Loudermill, supra, --- U.S. at ----, 105 S.Ct. at 1493. Since
appellant was denied such adequate procedures before punitively being
deprived of his liberty, and since it was not impossible or impracticable to
provide such procedures, the conclusion is inescapable that appellant was
denied due process. Parratt and the other cases upon which appellees rely are
not to the contrary. In those cases to which the reasoning of Parratt was applied
to deprivations of liberty, the deprivation itself was "random and unauthorized"
and a predeprivation hearing was impossible. E.g., Thibodeaux v. Bordelon,
740 F.2d 329, 338 (5 Cir.1984); Daniels v. Williams, 720 F.2d 792, 795 (4
Cir.1983), cert. granted, --- U.S. ----, 105 S.Ct. 1168, 84 L.Ed.2d 320 (1985).
Parratt and its progeny are inapposite here.
III.
23
25
Appellant alleges that he was detained in the SHU for a total of 65 days--12
days while the Superintendent's Hearing was pending and 53 days of
disciplinary detention. Since the Superintendent's Hearing was constitutionally
deficient, as appellees concede, it is as if appellant never received a hearing at
all. It therefore is unnecessary for us to determine whether the 12 days spent in
the SHU before the hearing was unconstitutionally lengthy. See Powell v.
Ward, 542 F.2d 101, 103 (2 Cir.1976) (requiring disciplinary hearing within
seven days of confinement in the SHU)
In a letter dated June 28, 1983 addressed to Judge Telesca, appellees' counsel,
an Assistant Attorney General for the State of New York, stated that the Attica
Facility no longer maintained the records that the district court ordered to be
produced because the state had expunged appellant's file pursuant to the Order
of Stipulation entered in the state court in the Article 78 proceeding. We note
that no explanation for the failure to produce the record in the state court in the
Article 78 proceeding is found in the record on this appeal. The Assistant
Attorney General stated in his letter to Judge Telesca, however, that copies
might be available from other sources. We assume that, upon the remand which
we are ordering, those copies will be produced