Wheeler-Whichard v. Fischer

10-5264-pr
Wheeler-Whichard v. Fischer
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 13th day of March, two thousand and twelve.
5
6 PRESENT: JOSEPH M. McLAUGHLIN,
7 BARRINGTON D. PARKER,
8 RICHARD C. WESLEY,
9 Circuit Judges.
10
11
12
13 JONATHAN WHEELER-WHICHARD,
14
15 Plaintiff-Appellant,
16
17 -v.- 10-5264-pr
18
19 JOHN ROACH, Chairman of Program Committee
20 of Attica Correctional Facility, MR. P.
21 CHAPPIUS, Deputy of Security of Attica
22 Correctional Facility, J. WHITEFORD,
23 Chairman of Program Committee of Attica
24 Correctional Facility,
25
26 Defendants-Appellees,
27
28 BRIAN FISCHER, Commissioner of New York
29 State Department of Correctional Services,
30 JOHN CONWAY, Superintendent of Attica
31 Correctional Facility, JOHN DOE, Deputy of
32 Security of Attica Correctional Facility,
33 MS. S. DOLCE, Deputy of Programs of Attica
1 Correctional Facility, MR. DOUGLAS C.
2 REYNOLDS, Acting/Assistant Deputy of
3 Programs of Attica Correctional Facility,
4
5 Defendants.
6
7
8 FOR APPELLANT: Jonathan Wheeler-Whichard, pro se,
9 Comstock, NY.
10
11 FOR APPELLEES: Barbara D. Underwood, Solicitor General,
12 Michael S. Belohlavek, Senior Counsel,
13 Martin A. Hotvet, Assistant Solicitor
14 General, for Eric T. Schneiderman,
15 Attorney General of the State of New
16 York, Albany, NY.
17
18 Appeal from the judgment of the United States District
19 Court for the Western District of New York (Skretny, C.J.;
20 Schroeder, M.J.).
21
22 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
23 AND DECREED that the judgment of the United States District
24 Court for the Western District of New York be AFFIRMED.
25 Plaintiff-Appellant Jonathan Wheeler-Whichard, pro se,
26 appeals from an award of summary judgment in favor of the
27 Appellees on his Fourteenth Amendment procedural due process
28 claim brought pursuant to 42 U.S.C. § 1983 and premised on
29 his placement into Attica Correctional Facility's Minimal
30 Privilege Company ("MPC") after he refused to participate in
31 the facility programs offered to him. We assume the
32 parties' familiarity with the underlying facts, the
33 procedural history of the case, and the issues on appeal.
2
1 We review orders granting summary judgment de novo and
2 focus on whether the district court properly concluded that
3 there was no genuine issue as to any material fact and the
4 moving party was entitled to judgment as a matter of law.
5 See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300
6 (2d Cir. 2003). In determining whether there are genuine
7 issues of material fact, this Court is "required to resolve
8 all ambiguities and draw all permissible factual inferences
9 in favor of the party against whom summary judgment is
10 sought." Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir.
11 2003) (internal quotation marks omitted). Summary judgment
12 is appropriate "[w]here the record taken as a whole could
13 not lead a rational trier of fact to find for the non-moving
14 party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
15 475 U.S. 574, 587 (1986).
16 An inmate asserting a procedural due process claim
17 "must establish (1) that he possessed a liberty interest and
18 (2) that the defendant(s) deprived him of that interest as a
19 result of insufficient process." Giano v. Selsky, 238 F.3d
20 223, 225 (2d Cir. 2001) (internal quotation marks omitted).
21 Here, the magistrate judge, in a report and recommendation
22 later adopted in full by the district court, found that
3
1 Wheeler-Whichard failed to establish a due process violation
2 because he received all of the process to which he was
3 entitled. Thus, although Wheeler-Whichard argues
4 extensively in his brief that he enjoyed a liberty interest
5 in remaining free from confinement in the MPC, "if the
6 district court correctly concluded that [Wheeler-Whichard]
7 received all the process due him, then [Wheeler-Whichard's]
8 showing of a protected liberty interest would not save his
9 cause of action from dismissal." Taylor v. Rodriguez, 238
10 F.3d 188, 191-92 (2d Cir. 2001). For the purposes of this
11 case, we therefore assume, without deciding, that
12 Wheeler-Whichard's placement in the MPC from February 2008
13 to September 2008, together with his second confinement
14 beginning in October 2009, imposed an atypical hardship
15 entitling him to some form of due process.
16 We have previously recognized a distinction between the
17 procedural protections an inmate must be afforded when
18 confined for "disciplinary" reasons and those required when
19 his confinement is for "administrative" purposes. For
20 example, in Sira v. Morton, we found that an inmate subject
21 to disciplinary confinement was “entitled to advance written
22 notice of the charges against him; a hearing affording him a
4
1 reasonable opportunity to call witnesses and present
2 documentary evidence; a fair and impartial hearing officer;
3 and a written statement of the disposition, including the
4 evidence relied upon and the reasons for the disciplinary
5 actions taken.” 380 F.3d 57, 69 (2d Cir. 2004). By
6 contrast, in Taylor v. Rodriguez, we determined that a
7 prisoner placed in administrative segregation be provided
8 “some notice of the charges against him and an opportunity
9 to present his views to the prison official charged with
10 deciding whether to transfer him to administrative
11 segregation.” 238 F.3d at 192 (internal quotation marks
12 omitted).
13 The appellees argue that Wheeler-Whichard's placement
14 in the MPC after refusing to accept the facility programs
15 offered to him was administrative, rather than disciplinary.
16 We agree. As we have previously held, disciplinary
17 confinement is "imposed for the purpose of punishment after
18 an adjudication of responsibility for some breach of prison
19 regulations." Bolden v. Alston, 810 F.2d 353, 357 n.3 (2d
20 Cir. 1987). Here, it is undisputed that Wheeler-Whichard
21 was never charged with violating prison regulations in
22 connection with his placement in the MPC. According to Paul
5
1 Chappius, Attica's Deputy Superintendent for Security,
2 Attica has a policy of "universal program participation,"
3 and inmates who refuse to participate in the offered
4 programs are placed into the MPC not for the purposes of
5 punishment, but rather to "monitor their activities during
6 the day" and to prevent them from thwarting "the facility's
7 goal of encouraging all inmates to participate in work or
8 educational programs." Moreover, Attica's policy governing
9 the MPC explicitly states that an inmate in the MPC may be
10 released into the general population at any time upon
11 notifying the authorities of his "[w]illingness to accept an
12 assignment or program." Thus, because Wheeler-Whichard's
13 confinement in the MPC was not for purposes of punishment,
14 and because, unlike disciplinary confinement, he could be
15 released from the MPC at any time he chose, his confinement
16 was administrative. Cf. Hall v. Unknown Named Agents of
17 N.Y. State Dep't for Corr. Servs., 825 F.2d 642, 647 (2d
18 Cir. 1987). As such, he was entitled only to "some notice
19 of the charges against him and an opportunity to present his
20 views to the prison official charged with deciding whether
21 to transfer him to administrative segregation." Hewitt v.
22 Helms, 459 U.S. 460, 476 (1983), overruled on other grounds
6
1 by Sandin v. Conner, 515 U.S. 472 (1995).
2 The magistrate judge correctly concluded that
3 Wheeler-Whichard received all of the process to which he was
4 entitled with respect to his administrative confinement in
5 the MPC. As he admits in his amended complaint,
6 Wheeler-Whichard met with the Program Committee Chairperson
7 in January 2008, several weeks before his transfer to the
8 MPC, and was informed that he would be placed in the MPC if
9 he refused to participate in the offered programs. Prior to
10 his transfer, Wheeler-Whichard sent the Chairperson a letter
11 explaining that he had refused to accept the offered
12 programs due to his safety concerns regarding rival gangs.
13 Thus, prior to his initial transfer to the MPC,
14 Wheeler-Whichard was informed of the reasons for his
15 eventual placement and was afforded an opportunity to
16 express his views. See Taylor, 238 F.3d at 192; see also
17 Hewitt, 459 U.S. at 476; Rodriguez v. Phillips, 66 F.3d 470,
18 480 (2d Cir. 1995). Moreover, with respect to his second
19 placement in the MPC in October 2009, Wheeler-Whichard
20 acknowledges that he went through the "same" process with
21 the new Program Committee Chairperson.
22 We have considered all of Wheeler-Whichard's remaining
7
1 arguments and find them to be without merit.
2 For the foregoing reasons, the judgment of the district
3 court is hereby AFFIRMED.
4
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe, Clerk
7
8
8