         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




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