Eric Alvarez v. Commissioner of Correction et al. (2014)

Ruling on Cross Motions for Summary Judgment

The plaintiff, a self-represented prisoner, has filed a complaint alleging that the defendants, the commissioner of correction and several correctional officials, improperly issued him a disciplinary ticket for assaulting a correctional officer in 2009.   The impropriety alleged in the complaint is that the defendants received three continuances before holding a disciplinary hearing in violation of the due process clause and a Department of Correction (Department) administrative directive permitting only two continuances.   The parties have filed cross motions for summary judgment.   The court adheres to the summary judgment standards set out in Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).

The defendants dispute that they received three continuances.   There is no need to resolve this dispute, however, because the plaintiff has not raised a claim that implicates due process and he cannot sue based upon a mere alleged violation of any administrative directive unless there is also a due process violation.

This case is essentially governed by the Appellate Court's recent decision in Joyce v. Commissioner of Correction, 129 Conn.App. 37, 19 A.3d 204 (2010).   There a prisioner who had received a disciplinary punishment of thirty days in punitive segregation as well as various other sanctions challenged the fairness of his disciplinary hearing because he was not permitted to present a video recording of the incident in question.  Id., 38.   The Court restated the governing law and its application in the following terms:  “In order to state a claim for a denial of procedural due process ․ a prisoner must allege that he possessed a protected liberty interest, and was not afforded the requisite process before being deprived of that liberty interest ․ A petitioner had no right to due process [at his disciplinary hearing] unless a liberty interest has been deprived ․ To constitute a deprivation of liberty, a restraint must have imposed an atypical and significant hardship ․ in relation to the ordinary incidents of prison life.  Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995).  (Citations omitted;  internal quotation marks omitted.)  Coleman v. Commissioner of Correction, [111 Conn.App. 138, 141–42, 958 A.2d 790 (2008), cert. denied, 290 Conn. 905, 962 A.2d 793 (2009) ].   We concluded that because the petitioner in Coleman had failed to demonstrate a recognized liberty interest, he was not entitled to due process at the disciplinary hearing.  Id., 143;  see also Frazier v. Coughlin, 81 F.3d 313, 318 (2d Cir.1996).   In the present case, because the petitioner failed to establish a recognized liberty interest, he was not entitled to due process at the disciplinary hearing.   His inability to present the video recording at that hearing is of no constitutional significance.”  (Internal quotation marks omitted.)  Id., 42–43.

In the present case, the affidavits of both a department record specialist as well as the disciplinary hearing officer establish that, for the disciplinary ticket in question, the plaintiff received a sanction of fifteen days in punitive segregation, thirty days loss of recreation privileges, and sixty days loss of commissary privileges.  (Affidavit of Michelle DeVeau, para. 12;  Affidavit of Yadira Otero, para. 15.)   Because this sanction is less severe than that in Joyce, in which the Court found no liberty interest, the plaintiff cannot establish a liberty interest here.   See also Sandin v. Conner, supra, 515 U.S. 485–86 (confinement in restrictive housing for thirty days did not represent an “atypical and significant hardship” that would implicate a liberty interest).

The plaintiff claims in his brief that he received a punishment of forty-five days in segregation.   However, such unsworn allegations in a brief do not constitute evidence on summary judgment.   See McKinney v. Chapman, 103 Conn.App. 466, 451, 929 A.2d 355, cert. denied, 284 Conn. 928, 934 A.2d 243 (2007).   The plaintiff can only meet his burden of showing the existence of a material fact issue “by counteraffidavits and concrete evidence.”  (Internal quotation marks omitted.)  Gianetti v. Health Net of Connecticut, Inc., 116 Conn.App. 459, 464–65, 976 A.2d 23 (2009).   He has not supplied any.   In any event, even a sanction of forty-five days in punitive segregation for the offense of assaulting a correctional officer, as alleged by the plaintiff, would not represent an atypical and significant hardship.   See Sealey v. Giltner, 197 F.3d 578, 589–90 (2d Cir.1999) (101 days of confinement in segregated housing not an atypical and significant hardship).

The plaintiff also claims that he lost good time credits as a result of the disciplinary action.   A loss of previously earned good time credits would constitute a deprivation of a liberty interest.   See Superintendent v. Hill, 472 U.S. 445, 453 (1985).   However, the defendants' affidavit establishes that the plaintiff did not lose any previously earned good time credit due to the disciplinary hearing.  (Otero Affidavit, para. 16.)   The plaintiff does not present any contrary evidence.   It appears that his real claim is that, by being placed in punitive segregation, he lost the opportunity to earn additional good time credit.   The Joyce Court specifically affirmed that this lost opportunity does not implicate a liberty interest.  Joyce v. Commissioner, supra, 129 Conn.App. 41–42.

Finally, the alleged violation of the department's administrative directives does not in itself implicate due process protections.   See Alston v. Butkiewicus, No. 3:09–cv–207 (CSH), 2012 WL 6093887, at *13 (D.Conn. Dec. 7, 2012).   Further, the plaintiff cannot sue the defendants directly, apart from a due process analysis, for violation of these directives, as the directives do not “confer rights on inmates.”  Sandin v. Conner, supra, 515 U.S. 482.   Thus, the plaintiff's failure to establish any liberty interest that would implicate due process or to state any other claim upon which relief could be granted necessitates the entry of judgment for the defendants.

The court accordingly denies the plaintiff's motion for summary judgment and grants the defendants' motion for summary judgment.

It is so ordered.

Carl J. Schuman

Judge, Superior Court

Schuman, Carl J., J.