    19-1242
    Ruggiero v. Fischer, et al.


                              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 ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

                  At a stated term of the United States Court of Appeals for the Second Circuit,
    held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
    New York, on the 1st day of April, two thousand twenty.

    PRESENT:
                DENNIS JACOBS,
                ROSEMARY S. POOLER,
                      Circuit Judges,
                MARK A. BARNETT,
                      Judge.*
    _____________________________________

    Anthony Ruggiero,

                                  Plaintiff-Appellant,

                        v.                                                     19-1242

    Brian Fischer, Commissioner of New York State
    Department of Corrections and Community
    Supervision, H. Hetrick, Jr., Correction Captain,
    Albert Prack, Director of Special Housing, Lucien J.
    LeClaire, Jr., Deputy Commissioner, Thomas
    Griffin, Superintendent, Jamie M. Lamanna, Deputy
    Superintendent of Security, William Fennessy,
    Deputy Superintendent of Administration, Stanley
    Sepiol, Correction Captain, Mark S. Shumaker,
    Correction Lieutenant and Hearing Officer,
    Lieutenant Thomas Evans, Frederick G. Butler,

    * Judge Mark A. Barnett, of the United States Court of International Trade, sitting by
    designation.
Correction Sergeant, Paul W. Emerson, Correction
Sergeant, Thomas E. Hannah, Correction Sergeant,
Jefferey L. Dillon, Correction Officer, Jason J.
Drhemer, Correction Officer, Drew R. Onifer,
Correction Officer, David J. Osborne, Correction
Officer, John S. Marshall, John A. Rogers,
Correction Officer, Jeff L. Ripley, Correction
Officer, Louis L. Tillinghast, Correction Officer,
Mark Vandergrift, Correction Officer,

                  Defendants-Appellees.
_____________________________________

Appearing for Appellant:                             Anthony Ruggiero, pro se, Attica, N.Y.

Appearing for Appellees:                             Robert M. Goldfarb, Assistant Solicitor
                                                     General (Barbara D. Underwood, Solicitor
                                                     General, Andrea Oser, Deputy Solicitor
                                                     General, on the brief), for Letitia James,
                                                     Attorney General, State of New York,
                                                     Albany, N.Y.

Appeal from the United States District Court for the Western District of New York (Arcara, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said district court be and it hereby is AFFIRMED.

        Appellant Anthony Ruggiero, pro se, appeals from the April 3, 2019 judgment of the
United States District Court for the Western District of New York (Arcara, J.) dismissing
Ruggiero’s suit under 42 U.S.C. § 1983 against various current and former employees of the New
York State Department of Corrections and Community Supervision (“DOCCS”). Ruggiero alleges
that the policy and practice of the Southport Correctional Facility, at which he was incarcerated,
violated his federal constitutional rights by requiring prisoners classified under the Progressive
Inmate Movement System (“PIMS”) as a Level I inmate to wear mechanical restraints, including
handcuffs and a waist chain, during their allotted exercise period. We assume the parties’
familiarity with the underlying facts, the procedural history, and the issues on appeal.

        On appeal, Ruggiero challenges the district court’s grant of summary judgment as to his
Fourteenth Amendment due process and equal protection claims. Ruggiero also challenges the
denial of his motion to amend his complaint to reassert claims for declaratory relief.

       We review a grant of summary judgment de novo, Sotomayor v. City of New York, 713
F.3d 163, 164 (2d Cir. 2013), determining whether the district court properly concluded that there
was no genuine dispute as to any material fact and that the moving party was entitled to judgment
as a matter of law, Sousa v. Marquez, 702 F.3d 124, 127 (2d Cir. 2012). “When the denial of leave
to amend is based on . . . a determination that amendment would be futile, [we] conduct[] a de
novo review.” Hutchison v. Deutsche Bank Sec. Inc., 647 F.3d 479, 490 (2d Cir. 2011).

   I.      Due Process Claim

        On appeal, Ruggiero contends that the district court erred in holding, per the
recommendation of the magistrate judge, that Southport’s restraint policy did not implicate a
liberty interest cognizable under the Due Process Clause of the Fourteenth Amendment, and that
Defendants-Appellees therefore were entitled to summary judgment on Ruggiero’s due process
claim. We conclude that the district court did not err in so holding.

        In the prison context, to establish a violation of due process, a plaintiff must demonstrate
that (1) he possessed a liberty interest and (2) the defendants deprived him of that interest without
sufficient process. Giano v. Selsky, 238 F.3d 223, 225 (2d Cir. 2001). In Sandin v. Conner, the
Supreme Court explained that while state law can create liberty interests protected by the Due
Process Clause, “these interests will be generally limited to freedom from restraint which . . .
imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of
prison life.” 515 U.S. 472, 484 (1995). Our case law after Sandin therefore holds that a prisoner
has a liberty interest “only if the deprivation is atypical and significant and the state has created
the liberty interest by statute or regulation.” Tellier v. Fields, 280 F.3d 69, 80 (2d Cir. 2000)
(internal quotation marks and ellipses omitted).

        Here, we conclude that the challenged use of mechanical restraints is not an atypical
hardship when compared to the ordinary incidents of prison life. See Sandin, 515 U.S. at 484.
Ruggiero confines his due process claim to the one-hour period during which he was mechanically
restrained during exercise as a Level I inmate at Southport, between October 22 and November
11, 2012, and December 12 through January 7, 2013. Mechanical restraints are typically used in
prison, particularly in special housing units (“SHUs”), and Southport is an entirely SHU facility.
While DOCCS regulations provide that mechanical restraints are not to be used for “disciplinary
purposes,” they nevertheless also provide that restraints may be used on general population
inmates “while transporting inmates within or outside of the facility or on orders of the facility
superintendent, and/or a physician when either deems it necessary to prevent injury to the inmate
or to others.” N.Y. Comp. Codes R. & Regs. (“N.Y.C.R.R.”) tit. 7 § 250.2(h). DOCCS Directive
No. 4933, which pertains specifically to SHUs, provides that all DOCCS inmates assigned to the
SHU are placed in mechanical restraints for movement “prior to exiting” their cells, and describes
the situations where restraints will be removed, such as at the request of a physician to permit
medical treatment. 7 N.Y.C.R.R. § 305.3(b). The Southport Inmate Orientation Manual provides
additional details concerning when Level I and II inmates are mechanically restrained, such as
during visits for Level I inmates and transport to the exercise area for Level I and II inmates. In
addition, Level I inmates are eligible for re-classification to Level II status—which does not
require mechanical restraints during the exercise period—after 30 days of good behavior.




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        We conclude that the challenged use of mechanical restraints at issue here do not constitute
an “atypical . . . hardship in relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at
484. Accordingly, we agree with the district court that Ruggiero has no liberty interest in exercising
without mechanical restraints while categorized as a Level I inmate. We therefore need not address
whether New York state “has created the liberty interest” that Ruggiero asserts “by statute or
regulation.” Tellier, 280 F.3d at 80 at (internal quotation marks omitted).

   II.     Equal Protection Claim

        Ruggiero contends on appeal that the district court erred in granting summary judgment to
Defendant-Appellees on his equal protection claim. Ruggiero argues that at SHUs other than at
Southport, the only way an inmate may be kept restrained in the exercise cage is through an
individual written restraint order. Thus, Ruggiero argues, the Level I restraint policy violated the
Equal Protection Clause because he did not receive such an order, and he therefore was treated
differently than inmates at every other SHU operated by DOCCS without any rational basis for
the different treatment.

        A plaintiff brings a class-of-one equal protection claim where he alleges that he was
“intentionally treated differently from others similarly situated and there [was] no rational basis
for the difference in treatment.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per
curiam). “[C]lass-of-one plaintiffs must show an extremely high degree of similarly between
themselves and persons to whom they compare themselves.” Clubside, Inc. v. Valentin, 468 F.3d
144, 159 (2d Cir. 2006). “Generally, whether parties are similarly situated is a fact-intensive
inquiry.” Id.

        The district court properly granted summary judgment on this claim, as Ruggiero made no
showing at all that he was treated differently from SHU inmates at other institutions. Ruggiero did
not attempt to identify a specific comparator at Southport or another facility with whom he had a
high degree of similarity. While he pointed only to the different regulations governing Southport
and other DOCCS facilities, this difference does not substitute for a showing that he was
“intentionally treated differently from others similarly situated,” Willowbrook, 528 U.S. at 564,
particularly where the difference in treatment is set forth in the regulations themselves.
Accordingly, we conclude that the district court properly granted summary judgment on his equal
protection claim.

   III.    Declaratory Relief

        Ruggiero returned to Southport in April 2018, where he was again subject to the Level I
policy. He then sought to re-assert his claim for declaratory relief that had been dismissed as moot
following his transfer out of that facility in 2015. Because the district court correctly held that the
restraint policy did not violate Ruggiero’s due process rights, amendment to add these claims,
based on that alleged constitutional violation, would be futile. The district court therefore properly


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denied Ruggiero’s motion to amend his complaint. See Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir.
2014) (leave to amend a complaint may be denied when amendment would be futile).

        We have considered all of Ruggiero’s remaining arguments and find them to be without
merit. Accordingly, we AFFIRM the judgment of the district court.

                                                   FOR THE COURT:
                                                   Catherine O’Hagan Wolfe, Clerk




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