Case 9:17-cv-00047-MAD-TWD Document 78 Filed 02/19/19 Page 1 of 183 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK _____________________________________________ LARRY PORTER, Plaintiff, v. 9:17-cv-0047 (MAD/TWD) DONALD UHLER and ANTHONY ANNUCCI, Defendants. _____________________________________________ APPEARANCES: OF COUNSEL: LARRY PORTER Plaintiff, pro se 88-A-4542 Clinton Correctional Facility P.O. Box 2000 Dannemora, NY 12929 HON. LETITIA JAMES OMAR J. SIDDIQI, ESQ. Attorney General of the State of New York Counsel for Defendants The Capitol Albany, NY 12224 THÉRÈSE WILEY DANCKS, United States Magistrate Judge REPORT-RECOMMENDATION AND ORDER I. INTRODUCTION This pro se civil rights action, brought under 42 U.S.C. § 1983, has been referred for a report and recommendation by the Honorable Mae A. D’Agostino, United States District Judge, pursuant to 28 U.S.C. § 636(b) and Northern District of New York Local Rule (“L.R.”) 72.3(c). Plaintiff Larry Porter, an inmate in the custody of the New York State Department of Corrections and Community Supervision (“DOCCS”), alleges Defendants Donald Uhler and Anthony Annucci violated his constitutional rights under the Eighth and Fourteenth Amendments against Case 9:17-cv-00047-MAD-TWD Document 78 Filed 02/19/19 Page 2 of 183 cruel and unusual punishment and the deprivation of liberty without due process of law based on his confinement in disciplinary segregation in the Special Housing Unit (“SHU”) for twenty- eight years. (Dkt. No. 1 at 5-7.1) Plaintiff seeks significant monetary damages. Id. at 9. Presently pending before the Court are cross motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Dkt. Nos. 62, 71.) Both motions are opposed. (Dkt. Nos. 71, 75.) For the following reasons, the Court recommends that Defendants’ cross motion for summary judgment (Dkt. No. 71) be granted, Plaintiff’s cross motion for summary judgment (Dkt. No. 62) be denied, and Plaintiff’s complaint (Dkt. No. 1) be dismissed in its entirety with prejudice. II. BACKGROUND2 Plaintiff entered DOCCS custody in 1988 and is serving a twelve year to life indeterminate sentence. (Dkt. No. 71-2 at ¶ 1.3) In the complaint, Plaintiff alleges he was subjected to “prolonged” and “extreme” isolation and inhumane conditions in the SHU. (Dkt. No. 1 at 6, 7.) He claims he was denied commissary, recreation, personal clothing, and telephone privileges. Id. at 7. Plaintiff was sentenced to SHU confinement in October 1989, and was not released until September 2017. Id. at 6.4 He was housed at Attica, Great Meadow, Elmira, Wende, Sullivan, 1 Page references to documents identified by docket number are to the numbers assigned by the CM/ECF docketing system maintained by the Clerk’s Office. Paragraph numbers are used where documents identified by the CM/ECF docket number contain consecutively numbered paragraphs. 2 The majority of facts are not in dispute. (Compare Dkt. No. 62-5 with Dkt. No. 71-2; Compare Dkt. No. 71-1 with Dkt. No. 75.) 3 See http://nysdoccslookup.doccs.ny.gov (DIN 88-A-4542) (last visited Feb. 15, 2019). 4 Plaintiff commenced this action on December 1, 2016. (Dkt. No. 1.) At that time, he was housed at Upstate and did not expect to be released until 2018. Id. at 6. However, Plaintiff was released from SHU confinement in September 2017. (Dkt. No. 71-1 ¶ 48.) 2 Case 9:17-cv-00047-MAD-TWD Document 78 Filed 02/19/19 Page 3 of 183 Clinton, Green Haven, Auburn, Southport, Upstate, and Five Points. (Dkt. No. 62-1 at ¶¶ 12, 13.5) As outlined in Judge D’Agostino’s February 7, 2017, Decision and Order, in the complaint, Plaintiff refers to a lawsuit filed in March 2011 in the United States District Court for the Southern District of New York.6 (Dkt. No. 6 at 4.) The lawsuit was filed by inmates against various DOCCS officials claiming that lengthy confinements in the SHU created an unconstitutional risk of harm to inmates. Id. The plaintiffs in that action sought injunctive and declaratory relief. Id. In March 2014 and June 2014, Plaintiff received two letters from attorneys affiliated with the New York Civil Liberties Union (“NYCLU”) advising Plaintiff of the aforementioned § 1983 class action. Id. In a letter dated October 21, 2014, Elena Landriscina, Esq. informed Plaintiff that the class action did not include a claim for money damages. (Dkt. No. 1 at 6.) On April 1, 2016, the Court in Peoples v. Annucci, approved a private agreement between DOCCS and the NYCLU. (Dkt. No. 71-1 at ¶ 79.7) Plaintiff claims the settlement agreement reached in Peoples v. Annucci “allowed me to sued for being kept in solitary-confinement on 5 Plaintiff was housed at Attica from October 1989 until April 1990; Great Meadow from April 1990 until July 1991; Elmira from July 1991 until February 1992; Wende from February 1992 until December 1992; Sullivan from December 1992 until May 1993; Clinton from May 1993 until May 1996; Southport from May 1996 until September 1998; Attica from September 1998 until July 1999; Great Meadow from July 1999 until April 2000; Green Haven from April 2000 until July 2001; Auburn from July 2001 until June 2002; Southport from June 2002 until June 2007; Upstate from June 2007, until May 2017; Five Points from May 2017, until September 2017. (See generally Dkt. No. 71-14; see also Dkt. No. 75 at ¶ 48.) Plaintiff is presently confined at Clinton. (Dkt. No. 76.) 6 Peoples, et. al. v. Annucci, et. al., No. 11 Civ. 2694 (S.D.N.Y. Apr. 18, 2011). 7 Plaintiff argues the settlement agreement is not “private” because he is a mandatory class member. (Dkt. No. 75 at ¶ 79.) 3 Case 9:17-cv-00047-MAD-TWD Document 78 Filed 02/19/19 Page 4 of 183 monetary damage’s.” (Dkt. No. 62-1 at ¶¶ 4, 5.8) Plaintiff claims “nobody had informed me in 1989 through 2014 that DOCCS solitary confinement were unconstitutional being practices.” (Dkt. No. 62-1 at ¶ 11.9) Plaintiff alleges that Defendant Uhler, the Superintendent at Upstate, supervised and controlled the SHU and refused to “cut” Plaintiff’s SHU time. (Dkt. No. 1 at 7.) Plaintiff asserts that Annucci, the Acting Commissioner, was aware of the widespread DOCCS policy encouraging the use of SHU confinement because Annucci was a defendant in Peoples v. Annucci. Id. at 5-6. Upon initial review, Plaintiff’s complaint was liberally construed as asserting Eighth Amendment conditions of confinement and Fourteenth Amendment procedural due process claims against Uhler and Annucci. (Dkt. No. 6 at 5-10.) Defendants filed their answer on April 21, 2017. (Dkt. No. 13.) A. Disciplinary Segregation The undisputed evidence demonstrates DOCCS has procedures in place to implement standards of inmate behavior and discipline inmates who misbehave, which are codified at 7 N.Y.C.R.R. Chapter V and DOCCS Directive 4932. (Dkt. No. 71-1 at ¶ 21.) Between 1988 and 2012, Plaintiff received hundreds of misbehavior reports and was found guilty of charges at approximately one hundred thirty-six Tier III disciplinary hearings and fifty-two Tier II disciplinary hearings. (Dkt. No. 71-2 ¶¶ 41, 63.) Plaintiff committed a range of offenses, 8 Unless indicated, all text quoted from Plaintiff’s complaint, deposition, and motion papers is unaltered. 9 On April 1, 2016, the Court in Peoples v. Annucci, approved a private agreement between DOCCS and the NYCLU. (Dkt. No. 71-1 at ¶ 79.) Plaintiff argues the settlement agreement is not “private” because he is a mandatory class member. (Dkt. No. 75 at ¶ 79.) 4 Case 9:17-cv-00047-MAD-TWD Document 78 Filed 02/19/19 Page 5 of 183 including assaulting staff, acting violently, performing unhygienic acts, possessing weapons, and disobeying direct orders. Id. at ¶ 42. Plaintiff remained in the SHU because he kept “getting tickets” and accruing additional disciplinary sentences. (Dkt. No. 71-2 at ¶ 1; see also Dkt. No. 71-6 at 30, 67.) An inmate may only serve a sentence for one disciplinary hearing at a time. (Dkt. No. 71-1 at ¶ 40.) Plaintiff was housed at Upstate from June 2007, until May 2017. Id. at ¶ 2. When Plaintiff was transferred to Upstate, he was already serving a disciplinary sentence of over fifteen years of consecutive SHU time from misbehavior reports he received at other facilities. (Dkt. No. 71-2 at ¶¶ 45, 47; Dkt. No. 71-13 at 1-14.) Before Plaintiff completed his prior disciplinary sentences from other institutions at Upstate, he accrued seventeen more disciplinary sentences there. (Dkt. No. 71-2 at ¶ 43; Dkt. No. 71-13 at 23-25.) Plaintiff testified: Q: Why do you keep catching tickets? A: The solitary confinement is harsh and I was losing my mind at the time. I was young and it was very harsh back then. That’s -- you know, I was losing my mind, yeah. (Dkt. No. 71-6 at 66-67.) Q: [I]sn’t it true that you kept -- you kept staying in the SHU because you kept racking up tickets? A: No. I kept staying in SHU because the conditions of confinement that -- that you know, my mind was mixed up at the time, so conditions of confinement, my mind was messed up at the time. Q: Which resulted in you getting disciplinary tickets? A: Yes -- yes. Yeah. Id. at 67. 5 Case 9:17-cv-00047-MAD-TWD Document 78 Filed 02/19/19 Page 6 of 183 Q: So every time, you keep staying in SHU because you keep getting tickets; right? A: Because -- because of my behavior, yeah.