12‐3641‐pr
Fludd 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 TO 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 for the Second
2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
3 Square, in the City of New York, on the 6th day of June, two thousand fourteen.
4
5 PRESENT: DENNIS JACOBS,
6 ROBERT D. SACK,
7 RAYMOND J. LOHIER, JR.,
8 Circuit Judges.
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11 JOVAN FLUDD,
12
13 Plaintiff‐Appellant,
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15 v. No. 12‐3641‐pr
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17 BRIAN FISCHER, COMMISSIONER, ANTHONY
18 ANNUCCI, DEPUTY COMMISSIONER, ROBERT
19 KIRKPATRICK, SUPERINTENDENT, MARTIN
20 KEARNEY, CAPTAIN, JOSEPH NOETH,
21 CAPTAIN, CURTIS DROWN, COMMISSIONER
22 HEARING OFFICER, THOMAS STICHT, DEPUTY
23 SUPERINTENDENT, KAREN CROWLEY,
24 DEPUTY SUPERINTENDENT, STEPHEN
25 CASACELI, CAPTAIN, NORMAN BEZIO,
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1 DIRECTOR OF SPECIAL HOUSING UNIT, JAMES
2 HERRING, CORRECTIONAL OFFICER,
3
4 Defendants‐Appellees.
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8 FOR APPELLANT: KATHLEEN E. DION (Jeffrey J. White, on the brief),
9 Robinson & Cole LLP, Hartford, CT.
10
11 FOR APPELLEES: VICTOR PALADINO, Assistant Solicitor General
12 (Barbara D. Underwood, Solicitor General, and
13 Denise A. Hartman, Assistant Solicitor General,
14 on the brief), for Eric T. Schneiderman, Attorney
15 General of the State of New York, Albany, NY.
16
17 Appeal from a judgment of the United States District Court for the
18 Western District of New York (Charles J. Siragusa, Judge).
19 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
20 AND DECREED that the judgment of the District Court is AFFIRMED in part
21 and VACATED and REMANDED in part.
22 Jovan Fludd appeals from a judgment of the District Court granting the
23 motion of defendants‐appellees (“defendants”) to dismiss, or in the alternative,
24 for summary judgment as to all of Fludd’s claims. These claims alleged a variety
25 of constitutional violations stemming from Fludd’s long‐term confinement in
26 administrative segregation. On December 3, 2012, this Court dismissed the bulk
27 of Fludd’s appeal but allowed him to proceed with his challenge to the District
28 Court’s dismissal of his due process claims concerning his administrative
29 segregation after March 2008. On appeal, Fludd argues that the District Court
30 erred in (1) concluding that collateral estoppel bars his due process claim with
31 respect to an April 2008 hearing and determination to place him in
32 administrative segregation, and (2) dismissing his due process claim with respect
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1 to the defendants’ failure to provide periodic and meaningful reviews of his
2 administrative segregation status. We assume the parties’ familiarity with the
3 facts and record of the prior proceedings, to which we refer only as necessary to
4 explain our decision to affirm in part and vacate and remand in part.
5 We review decisions granting both motions to dismiss and motions for
6 summary judgment de novo. Aegis Ins. Servs., Inc. v. 7 World Trade Co., 737
7 F.3d 166, 176 (2d Cir. 2013).
8 “New York courts apply collateral estoppel, or issue preclusion, ‘if the
9 issue in the second action is identical to an issue which was raised, necessarily
10 decided and material in the first action, and the plaintiff had a full and fair
11 opportunity to litigate the issue in the earlier action.’” LaFleur v. Whitman, 300
12 F.3d 256, 271 (2d Cir. 2002) (quoting Parker v. Blauvelt Volunteer Fire Co., 93
13 N.Y.2d 343, 349 (1999)). The burden of proof on the “full and fair opportunity”
14 requirement rests with the party opposing collateral estoppel. See Schwartz v.
15 Pub. Adm’r of Cnty. of Bronx, 24 N.Y.2d 65, 73 (1969).
16 Applying these principles, we conclude that the District Court properly
17 determined that collateral estoppel bars Fludd’s claim that the April 2008 hearing
18 and determination to place him in administrative segregation violated his due
19 process rights. The issues underlying this due process challenge were raised,
20 necessarily resolved against Fludd, and material in a previous Article 78
21 proceeding. See Fludd v. N.Y. State Dep’t of Corr. Servs., 879 N.Y.S.2d 606, 609‐
22 10 (3rd Dep’t 2009). And we discern no procedural deficiencies in either the
23 Article 78 proceeding or the April 2008 hearing that “produced some significant
24 effect on” the review of these issues or otherwise prevented Fludd from fully
25 litigating them in the Article 78 proceeding. See Giakoumelos v. Coughlin, 88
26 F.3d 56, 59‐60 (2d Cir. 1996); see also Parker, 93 N.Y.2d at 350.
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1 We turn next to Fludd’s claims concerning the defendants’ failure to
2 conduct periodic and meaningful reviews of his administrative segregation
3 status. An inmate has a liberty interest protected by procedural due process
4 when his “confinement subject[s] [him] to ‘atypical and significant hardship . . .
5 in relation to the ordinary incidents of prison life.’” Colon v. Howard, 215 F.3d
6 227, 230 (2d Cir. 2000) (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)).
7 Depending on its duration and conditions, administrative segregation can
8 constitute “atypical and significant hardship.” See Palmer v. Richards, 364 F.3d
9 60, 64‐66 (2d Cir. 2004). Although our cases consistently decline to establish
10 bright‐line rules in this area, we have previously determined that, even under
11 “normal” conditions, solitary confinement for 305 days constitutes “a sufficient
12 departure from the ordinary incidents of prison life to require due process
13 protections.” Colon, 215 F.3d at 231.
14 For the purpose of establishing a liberty interest, a district court should
15 consider the entire “sustained period of confinement.” Giano v. Selsky, 238 F.3d
16 223, 226 (2d Cir. 2001). Fludd’s complaint alleges that he spent more than two
17 and a half years in continuous solitary confinement after the April 2008 hearing
18 before the filing of this complaint. This unbroken stretch, substantially longer
19 than 305 days, is sufficiently “atypical and significant” to establish a liberty
20 interest. 1 See, e.g., Colon, 215 F.3d at 231.
1 Because the duration of Fludd’s confinement alone establishes a liberty interest,
we do not address the District Court’s conclusion that the conditions of Fludd’s
confinement were not atypical and significant in relation to general prison
conditions. Cf. Palmer, 364 F.3d at 64–65 (district courts are in the usual case
expected to engage in a “fact‐intensive inquiry” regarding the conditions of
confinement when the plaintiff was segregated from the general prison
population for a substantial length of time).
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1 We therefore vacate the District Court’s judgment as it pertains to Fludd’s
2 periodic‐review claim. On remand, the District Court may determine, in the first
3 instance, whether the failure to conduct regular status reviews violated
4 constitutional due process, and whether the defendants are entitled, at the
5 pleadings stage, to qualified immunity. We affirm the judgment of the District
6 Court, however, insofar as it concluded that Fludd’s allegations are insufficient
7 to state a plausible claim that the status reviews which did take place did not
8 satisfy the minimum requirements of the Due Process Clause. See Hewitt v.
9 Helms, 459 U.S. 460, 472, 477 n.9 (1983) (stating that prison officials need “engage
10 only in an informal, nonadversary review of the information supporting [the
11 inmateʹs] administrative confinement,” without necessarily permitting “the
12 submission of any additional evidence or statements”).
13 We have considered Fludd’s remaining arguments and conclude that they
14 are without merit. For the foregoing reasons, the judgment of the District Court
15 is AFFIRMED in part and VACATED and REMANDED in part.
16
17 FOR THE COURT:
18 Catherine O=Hagan Wolfe, Clerk of Court
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