Full opinion text
MEMORANDUM OPINION KAPLAN, District Judge. Plaintiff pro se Joe Jackson, a New York inmate, brings this action pursuant to 42 U.S.C. § 1983 seeking monetary and injunc-tive relief stemming from allegedly false disciplinary charges brought against him and his subsequent transfers to various prisons, both of which Jackson contends the defendant corrections officers precipitated in retaliation for Jackson’s constitutionally protected activities. Jackson’s wife, plaintiff Ruby Jackson, alleges psychological and economic damage resulting from her husband’s transfers. Before the Court is the defendants’ summary judgment motion. For the reasons that follow, the defendants’ motion for summary judgment is granted in part and denied in part. Facts In January 1996, while incarcerated at Fishkill Correctional Facility (“FishkiU”), Jackson requested to be placed in protective custody to “avoid possible problems” with other inmates. At a meeting with prison officials to assess Jackson’s need for protective custody, defendant Johnson allegedly presented him with a list of fellow inmates’ names and asked him to implicate the inmates as his harassers. Jackson refused. The next day, Jackson was placed in protective custody. While escorting him to the unit, Johnson allegedly threatened Jackson for refusing to implicate one of the inmates. A few hours after Jackson arrived in protective custody, Johnson was assigned to pack up Jackson’s personal belongings from his open cube located in a dorm for approximately 60 inmates. While thus engaged, Johnson allegedly found in Jackson’s cubicle a razor “that had the end and guards broken off exposing the blade.” After determining that the razor could be used as a weapon, Johnson issued a misbehavior report which charged Jackson with violating prison regulations. A Tier III disciplinary hearing was held on the charge in the misbehavior report. Jackson was found guflty and sentenced to 99 days of “keeplock” and loss of privileges. Jackson alleges that, also as a result of the guilty finding, he was “hit at the parole board with two additional years” and denied his “property,” “legal materials,” and “access to the law library.” Jackson contends, moreover, that he was forbidden “access to vocational, educational, recreational and rehabilitative therapy, and programs,” restrictions were placed on his exercise, he was confined to a cell for 24 hours a day for more than 150 days, and “he was forced to wear the same one set of state greens, day after day, week after week, being unable to wash them because he had nothing to change into.” Jackson’s efforts to appeal the disciplinary charge were unsuccessful. His prison administrative appeals were denied, and his Article 78 proceeding was dismissed for failure to timely serve the petition. Jackson then filed this action under 42 U.S.C. § 1983. The Court understands this pro se litigant to allege that he was denied due process of law because (1) the razor was planted in his belongings and the charges fabricated in retaliation for his refusal to implicate his fellow inmates, (2) the evidence introduced against him was “tainted” in that the defendants did not follow a DOCS directive in regard to the search and, in any case, the only evidence introduced at the hearing was a photocopy of the razor rather than the razor itself, and (3) because his appointed assistant refused to help him prepare a defense. Jackson alleges that the defendants retaliated against him also by transferring him to various prisons. The defendants move for summary judgment. The Magistrate Judge to whom the case was referred recommended granting summary judgment, and Jackson objects to the report and recommendation. It should be noted that Jackson’s complaint raised also a number of allegations concerning his treatment while incarcerated at Attica Correctional Facility (“Attica”), and in later submissions Jackson contended that he was mistreated also while at Auburn Correctional Facility (“Auburn”). By Order of June 12, 1997, this Court severed Jackson’s claims regarding the period during which he was incarcerated at Attica and transferred those claims to the Western District of New York where Attica is located. The Court at that time made clear also that any claims Jackson intended to raise regarding his treatment while at Auburn were to be addressed to the Northern District of New York. Jackson, however, has reasserted before this Court several of his grievances concerning Attica and Auburn and has made other complaints without specifying where the offending conduct occurred. In passing on this motion, the Court has assumed, as it must, that all conduct not specifically stated to have occurred at Attica or Auburn took place at Fishkill. Discussion Due Process Challenge to the Disciplinary Hearing The defendants’ motion for summary judgment on Jackson’s due process challenge to the prison disciplinary hearing relies on four grounds: (1) that Jackson has failed to demonstrate that his confinement posed an “atypical and significant hardship” as required by Sandin v. Conner; (2) that Edwards v. Balisok bars Jackson’s claim, (3) that Jackson did not demonstrate that the procedures employed at the disciplinary hearing fell short of those required in Wolff v. McDonnell and finally, (4) that the defendants are entitled to qualified immunity. Sandin v. Conner The logical starting point for analysis is the defendants’ belated argument that they are entitled to summary judgement on the ground that Jackson failed to allege “any facts to suggest that the duration or conditions of his segregated confinement amounted to an atypical and significant hardship” as required by the Supreme Court’s decision in Sandin v. Conner. To establish a due process violation “it is necessary to prove that the state has created a protected liberty interest and that the process due was denied.” The Supreme Court in Sandin v. Conner considered whether prisoners have protected liberty interests in prison disciplinary proceedings such that they are entitled to due process in those hearings. The Court found that, although “States may under certain circumstances create liberty interests which are protected by the Due Process Clause!,] these interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Following Sandin, the Second Circuit articulated a two-part test governing due process challenges to prison disciplinary proceedings. “To prevail, [the plaintiff] must establish both that the confinement or restraint creates an ‘atypical and significant hardship’ under Sandin, and that the state has granted its inmates, by regulation or by statute, a protected liberty interest in remaining free from that confinement or restraint.” Factors bearing on the “atypical and significant hardship” inquiry include: (1) the effect of disciplinary action on the length of prison confinement, (2) the extent to which the conditions of the disciplinary segregation differ from other routine prison conditions, and (3) the duration of the disciplinary segregation imposed compared to discretionary confinement. The Second Circuit repeatedly has made clear that district courts are to undertake extensive fact-finding in assessing whether a liberty interest has been affected, including determinations regarding both the length and the circumstances of the confinement. It has cautioned district courts to remain cognizant also of their duty on summary judgment to take the non-moving party’s allegations as true and draw all permissible factual inferences in favor of that party. In Wright v. Coughlin, for example, the Second Circuit reversed a lower court’s grant of summary judgment because the court had impermissibly credited a prison official’s assertion that the plaintiffs confinement had not been atypical or significant and ignored the plaintiffs allegations that he was denied access to certain programs to which administratively confined prisoners were permitted access and deprived of personal belongings (including clothing), sufficient food, opportunities for work, programming, and recreation, numerous privileges (including telephone usage, receipt of packages, and conjugal visits), and access to the law library. Summary judgment was improper, according to the Circuit, because the district court in substance had resolved issues of fact by crediting the prison officials. In this case, the defendants rely entirely on the length of Jackson’s confinement for their argument that the punishment was not “atypical and significant.” The defendants have submitted no evidence, however, regarding the conditions of Jackson’s confinement. Jackson, on the other hand, alleges in his sworn statements that, in addition to his 99 days of “keeplock” and loss of privileges, he was “hit at the parole board with two additional years” and denied his “property,” “legal materials,” and “access to the law library,” forbidden “access to vocational, educational, recreational and rehabilitative therapy, and programs,” restricted in his exercise, confined to a cell for 24 hours a day for more than 150 days, and “forced to wear the same one set of state greens, day after day, week after week, being unable to wash them because he had nothing to change into.” The defendants do not challenge these assertions. Bearing in mind that defendants move for summary judgment and that the burden therefore rests with the defendants to establish the absence of a genuine issue of material fact, the Court finds that defendants have failed to sustain their burden. In the face of Jackson’s sworn statement regarding the conditions of his confinement, the defendants failed to adduce any evidence that these conditions were not an “atypical and significant hardship” in comparison to the condition of other prisoners. Consequently, it would be improper to grant the defendants summary judgment on that ground. Edwards v. Balisok In Edwards v. Balisok, the Supreme Court held that a prisoner may not challenge under Section 1983 the result of a prison disciplinary hearing that deprived the prisoner of good-time credits if success of the challenge necessarily would imply the invalidity of the hearing unless and until the results of the hearing have been overturned or vacated. Neither party has alleged or demonstrated that Jackson lost good-time credits as part of his punishment for the misbehavior charges. Jackson contends, however, that he was “hit at the parole board with two additional years” because of the misbehavior report filed against him. It is unclear whether the denial of parole based on misconduct is equivalent to a loss of good-time credits imposed as a consequence of a disciplinary hearing. But the Court need not decide whether it is because there is no competent evidence on the record to substantiate Jackson’s assertion. Jackson’s Rule 56.1 statement, although sworn, does not demonstrate that he is competent to testify as to the basis for any parole board decision. His allegation that he was denied parole for an additional two years on the basis of the misbehavior report at issue therefore must be disregarded by this Court. The issue before the Court then is whether Edwards bars prisoner due process challenges under Section 1983 to disciplinary hearings where the prisoner has lost no good time as a result of the hearing. In analyzing this issue, it is important to consider Edwards in context. Twenty five years ago, in Preiser v. Rodriguez, the Supreme Court considered the availability to prisoners of Section 1983 relief based on the denial of due process at prison disciplinary proceedings. In that case, it held that a prisoner seeking to restore good time credits that had been withdrawn through allegedly unconstitutional prison disciplinary proceedings must proceed through habeas corpus rather than Section 1983. Reasoning that “attacking the very duration of [the prisoner’s] physical confinement itself’ due to the loss of good time credits lay “within the core of habeas corpus,” the Court found that permitting a prisoner to proceed through Section 1983, rather than habeas when he had not exhausted available state remedies would “wholly frustrate” Congress’s intent in providing an exhaustion requirement for habeas. Preiser consequently refused to permit prisoner challenges via Section 1983 to “the fact or duration of [their] confinement based ... upon the alleged unconstitutionally of state administrative action.” Notably, the Court limited its ruling to prisoner challenges to “the fact or duration of’ prison confinement and reaffirmed that Section 1983 remains “a proper remedy for a state prisoner who is making a constitutional challenge to the conditions of his prison life, but not to the fact or length of his custody.” Among the Court’s examples of “condition of confinement” cases were Haines v. Kerner and Wilwording v. Swenson, both of which involved due process attacks on prison disciplinary hearings which had resulted in disciplinary segregation but no loss of good time credits and thus no change in the fact or duration of the prisoners’ confinement to prison. Then, in Heck v. Humphrey, the Supreme Court considered a claim for damages under Section 1983 by a prisoner who alleged that prosecutors and police officers had engaged in various types of misconduct in the investigation and prosecution of his case. Concluding that the plaintiffs claim implied the invalidity of his conviction, the Court held “that, in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus.” Central to the Court’s conclusion was the notion that permitting a Section 1983 attack on a conviction that still stands would “expand opportunities for collateral attack” and might risk “the creation of two conflicting resolutions arising out of the same or identical transaetion[s].” Thus, the Court held, a district court initially must determine whether a Section 1983 claim for damages, if established, would “necessarily imply the invalidity of the conviction or sentence.” If so, the complaint must be dismissed unless the conviction or sentence already has been invalidated. Most recently, the Supreme Court in Edwards v. Balisok applied Heck to a prisoner’s due process challenge to the procedures of a prison disciplinary hearing which resulted- in the deprivation of the prisoner’s good-time credits and thus lengthened his confinement. As in Heck, the Supreme Court concluded that the prisoner’s claims, which were based on the alleged deceit and bias on the part of the decisionmaker, if established, would “necessarily imply the invalidity of the punishment imposed” and held that the claim was “not cognizable under § 1983.” This case differs from Edwards in an important respect. As noted above, plaintiff Joe Jackson does not claim that he lost good time credits as a result of the disciplinary action. Hence, the issue raised by defendants’ motion is whether Edwards nevertheless bars this Section 1983 claim on the theory that the outcome of this ease could imply the invalidity of Jackson’s hearing. There is a circuit split on this point. The District of Columbia Circuit in Brown v. Plaut confined Edwards to challenges resulting in the loss of good time credits. Relying on the language of Preiser that Section 1983 remains “a proper remedy for a state prisoner who is making a constitutional challenge to the conditions of his prison life, but not to the fact or length of his custody,” the court concluded that a disciplinary hearing that results only in administrative segregation does not affect the fact or duration of the prisoner’s confinement. Accordingly, it held that a challenge to the outcome of such a hearing is cognizable under Section 1983. In contrast, the Seventh Circuit in Stone-Bey v. Barnes held that Edwards bars all prisoner Section 1983 attacks, the success of which necessarily would imply the invalidity of prison disciplinary hearings, unless the result of the hearing in question previously has been overturned or vacated. The Stone-Bey court reasoned that “[t]he ‘conviction’ in the prison disciplinary sense is the finding of guilt on the disciplinary charge.” In other words, the Seventh Circuit found that Edwards bars challenges to the “fact or duration of’ the disciplinary sanctions, not simply the “fact or duration of’ the prison confinement itself. This Circuit has not yet directly considered the applicability of Edwards to Section 1983 claims involving no loss of good time credits. Nor do the existing indications of its view point uniformly in one direction. On the one hand, in Black v. Coughlin, which was decided after Heck but before Edwards, the Second Circuit considered a prisoner’s claim based on an alleged denial of due process in a prison disciplinary proceeding which did not result in a loss of good time credits. It held, under Heck, that the claim did not accrue for statute of limitations purposes until the plaintiff succeeded in having the disciplinary ruling reversed by the state court. Black thus implies, although it does not hold, that the Second Circuit would follow the Seventh Circuit’s interpretation of Edwards and require a prison disciplinary hearing determination to be overturned or vacated before forming the basis of a Section 1983 suit unless the success of the Section 1983 claim would not imply the invalidity of the hearing result. On the other hand, however, this Circuit recently has permitted Section 1983 challenges to prison disciplinary hearings which involved no loss of good-time credits and in which the underlying guilty finding had not been vacated or invalidated. Thus, the issue of Edwards ’ applicability to claims involving prison disciplinary hearings which do not involve the loss of good time credits remains very much an open one in this Circuit. This Court is persuaded that Edwards does not apply where the disciplinary hearing at issue has no impact on the fact or duration of the prisoner’s confinement in prison. Preiser, which is the ultimate foundation of Edwards, is based on the principle that habe-as corpus, not Section 1983, is the appropriate vehicle for challenging the existence or duration of confinement. The Preiser Court reiterated that Section 1983 is available to challenge conditions of confinement, indicating by its citation to Haines v. Kerner that disciplinary segregation involves such conditions. Both Heck and Edwards made clear also that they were concerned with challenges to the fact or duration of the prison confinement, not disciplinary segregation within the prison — Edwards involved prison procedures that resulted in the loss of good time credits and Heck concerned imprisonment based on allegedly unconstitutional prosecutorial and investigatory procedures that led to the plaintiffs imprisonment. In consequence, the Seventh Circuit’s view that Edwards bars an action like this is not persuasive, particularly when Edwards is considered in its full context. Nor would such a result be supported by the rationale of the relevant Supreme Court decisions. Preiser was concerned primarily with ensuring that prisoners use habeas corpus, not Section 1983, to attack the fact or duration of their confinement or to collaterally attack their convictions because such challenges lie at the “core” of habeas corpus, the availability of which is subject to important statutory restrictions inapplicable to Section 1983. It expressly refused to require use of habeas for condition of confinement cases in light of the fact that “it is arguable that habeas corpus will lie to remove the restraints making the custody illegal.” Thus, there is no principled reason for requiring a prisoner who is challenging the conditions of his confinement to proceed by habeas corpus rather than Section 1983. Because Jackson did not lose any good time credits and because he has not challenged the fact or duration of his confinement in prison, Edwards v. Balisok presents no barrier to this claim. Remaining Defenses The defendants make two other cursory arguments with respect to Jackson’s due process claim. First, they contend that plaintiff “does not allege any facts to suggest that any of the procedural due process protections set forth in Wolff v. McDonnell were violated during the disciplinary hearing.” Second, they argue that they are entitled to qualified immunity because any liberty interest that Jackson had in remaining free from segregated confinement was not “clearly established in 1996.” The Court disagrees. In support of his claim that he was denied due process protection, Jackson contends that tainted evidence was introduced against him in the disciplinary hearing and that he was deprived of assistance in preparing his defense. The tainted evidence argument is based on Jackson’s claim that he was not present when his cell was searched, as allegedly required by a prison directive, that the razor itself was not produced at the hearing and allegedly was destroyed by the prison officials, that the only evidence introduced against him was a photocopy of the razor, and that the log books which purportedly contain an entry after the razor was found now are missing. Essentially Jackson contends that the evidence against him was inherently unreliable and otherwise insufficient. “[D]ue process requires ‘that there be some evidence to support the findings made in the disciplinary hearing.’ ” The record of the disciplinary hearing reveals that the evidence offered against Jackson included the misbehavior report filed by Johnson, a photocopy of the razor allegedly found in Jackson’s belongings, the testimony of Correction Officer Marshall, and a letter by Jackson to Lieutenant Pataro. The stated reason for the guilty finding was that the defendant had shown “no reason why someone would plant a weapon on him.” Although it is true that the actual razor appears not to have been introduced at the hearing and that the log books documenting the chain of custody of the razor supposedly have been lost, this Court cannot say that there was no evidence supporting the disciplinary board’s finding that Jackson was guilty of the charges. The other due process claim, however, is not so easily dismissed. Assuming that Jackson’s punishment implicated a protected liberty interest — that is, that his confinement was “atypical and significant” and that New York law had created a liberty interest in being free of such confinement — he then will have to demonstrate that the procedures afforded him at the disciplinary hearing fell short of the requirements enunciated in Wolff v. McDonnell. Jackson’s deprivation of assistance argument is based on his assertion that he requested the help of a staff assistant in preparing his defense for the disciplinary hearing but was refused. Wolff requires, among other things, the assistance of at least a staff member or fellow inmate where the prisoner is illiterate or the issues involved complex. As the defendants have not shown that neither of these conditions was present, they have failed to establish the absence of a genuine issue of fact as to whether Jackson’s disciplinary hearing comported with the requirements of Wolff. As to the qualified immunity argument, “[gjovemment officials are protected from suits against them in their individual capacity for money damages where ‘their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’” “A right is ‘clearly established’ if ‘[t]he contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right.’ ” Qualified immunity.does not shield officials who “knowingly violate the law.” Defendants’ qualified immunity argument rests on the notion that the only proteetible liberty interest that Jackson might have possessed was in being free of disciplinary confinement that exceeded a certain period of time. This overlooks Jackson’s allegations that during his confinement, he was subjected to a myriad of deprivations above and beyond the length of the keeploek itself. A prisoner’s right to be free of such conditions, such as the denial of access to the courts through restrictions on typewriters or law libraries, was firmly established a number of years prior to 1996. Without a more substantial showing than that currently before the Court, the defendants are not entitled to dismissal on the ground of qualified immunity at this time. Retaliation Claims In addition to challenging the procedures employed at the disciplinary hearing, Jackson claims also that the defendants retaliated against him for his request to be placed in protective custody, his refusal to implicate other inmates as his potential harassers and because of defendant Johnson’s racist state of mind. In particular, Jackson asserts that the filing of “false charges” against him and the decisions to transfer him to various prisons were the product of the defendants’ retaliatory motives. The defendants’ motion for summary judgment contends that Jackson failed to demonstrate a deprivation of his constitutional rights in that (1) the retaliation is alleged in conclusory terms, (2) the complaint fails to show that retaliation was a “substantial or motivating factor” behind the issuance of the misbehavior report, and (3) the defendants have demonstrated that the plaintiff would have been disciplined based on proper reasons alone because defendant Johnson was required by the administrative code to report any incident involving inmate misbehavior such as possession of a weapon. Additionally, the defendants argue that neither of them had personal involvement in the decision to transfer Jackson to various prisons. Prisoners have “a right not to be subjected to false misconduct charges in retaliation for [their] exercise of a constitutional right.” In order to survive summary judgment, a plaintiff who claims retaliation for the exercise of a constitutional right must demonstrate both “(1) that the disciplined conduct was constitutionally protected, and (2) that his punishment was motivated, in whole or in part, by his conduct — in other words, that the prison officials’ actions were substantially improper retaliation.” If the plaintiff meets this burden, “his claim will still not survive summary judgment ... if the defendants meet their burden of showing that there is no genuine issue as to the fact that [the plaintiff] would have received the same punishment even if they had not been improperly motivated.” Misbehavior Report Jackson contends that he engaged in constitutionally protected behavior when he petitioned prison officials to place him in protective custody because he had reason to fear for his life from other inmates in his housing unit and when he refused to implicate a fellow inmate as one of his harassers. He contends also that his request for protective custody and his refusal to implicate a certain inmate were substantial factors in Johnson’s planting the razor in his belongings or writing Jackson up on the razor Johnson legitimately located in Jackson’s belongings. Defendants have offered competent and undisputed proof that Officer Johnson did not place the razor in Jackson’s belongings and that Johnson was required by statute to report the razor as a weapon. The applicable statutes require that “[e]very incident of inmate misbehavior involving danger to life, health, security or property must be reported, in writing as soon as practicable,” and that “[t]he misbehavior report shall be made by the employee who has observed the incident or who has ascertained the facts of the incident.” Because Johnson did not plant the razor and was obligated to issue a misbehavior report once he found it, the defendants have demonstrated adequately that they would have issued the misbehavior report even in the absence of a retaliatory motive. They therefore are entitled to summary judgment on this claim. Transfers Jackson contends that the Department of Correctional Services retaliated against him by transferring him from Fish-kill to Auburn Correctional Facility to Green-haven and then back to Fishkill as part of an effort to “intentionally hinder and hamper” his efforts to challenge the disciplinary hearing in an Article 78 proceeding. The defendants have submitted a declaration from the Deputy Superintendent of Security for Fish-kill, Robert Ercole, who reviewed plaintiffs transfer from Fishkill to Auburn and determined that (1) defendant “Goord is not involved in routine transfers such as plaintiffs 1996 transfer,” and (2) “a Correction Officer, such as Thomas Johnson, lacks the authority to initiate or authorize any such transfer.” Although it is well settled that “personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983,” Ercole’s declaration fails to state that Goord and Johnson were not personally involved in Jackson’s transfer. While Goord may not “typically” be involved in routine transfers such as Jackson’s, Ercole has not excluded the possibility that this was an atypical case — i.e., that Goord was involved in Jackson’s transfer. And while Johnson lacks the authority to initiate or authorize a transfer, that is not to say that he was not personally involved in one or more of these transfer decisions. Nor does Ercole allege personal knowledge of the facts of Jackson’s transfer. His declaration is premised entirely on his review of the official report of Jackson’s transfer and his personal knowledge of the Department of Correctional Service’s transfer rules and procedures. As this fails to comply with FED. R. CIV. P. 56(e), the defendants are not entitled to summary judgment on the ground that they lacked personal involvement in the transfers. Remaining Claims Jackson’s pro se papers, read liberally, allege also that the defendants infringed upon his Eighth Amendment rights. Jackson’s wife, plaintiff Ruby Jackson, claims that her rights have been violated by the transfer of her husband to a prison much further from her home. Both of these claims fail for the reasons articulated by the Magistrate Judge in his report and recommendation. Conclusion Defendants’ motion for summary judgment dismissing the complaint is granted (a) in its entirety with respect to plaintiff Ruby Jackson and (b) with respect to plaintiff Joe Jackson insofar as he complains of (i) an allegedly retaliatory misbehavior report, (ii) violations of the Eighth Amendment, and (in) the alleged use of “tainted” evidence against him in the Tier III hearing. It is denied in all other respects. Thus, what remains of the case is Jackson’s claim that he was deprived of assistance in the Tier III hearing and subjected to retaliatory transfers. SO ORDERED. REPORT AND RECOMMENDATION PECK, United States Magistrate Judge. In this 42 U.S.C. § 1983 action, pro se plaintiff Joe Jackson (“Jackson”) has sued a Corrections Officer at Fishkill Correctional Facility and the Commissioner of Correctional Services for retaliation and alleged violations of due process and cruel and unusual punishment under the Eighth Amendment, in connection with a Tier III disciplinary hearing that resulted in his confinement for 99 days in keeplock at Fishkill, and his subsequent transfer from Fishkill to Auburn Correctional Facility. Plaintiff Ruby Jackson, Joe Jackson’s wife, also alleges psychological and economic problems as a result of her husband’s transfer to a more remote prison. This case has generated three prior judicial opinions, familiarity with which is assumed. See Jackson v. Johnson, 985 F.Supp. 422 (S.D.N.Y.1997) (denying defendants’ motion to stay the action because of a then-pending criminal action against Jackson and denying plaintiffs’ motion to add New York State and DOCS as defendants); Jackson v. Johnson, 1997 WL 397626 (S.D.N.Y. June 16, 1997) (severing and transferring to W.D.N.Y. Jackson’s claims regarding his treatment at Attica and declining to act on formally unasserted claims regarding his treatment at Auburn); Jackson v. Johnson, 962 F.Supp. 391 (S.D.N.Y.1997) (denying Jackson’s request for a TRO restraining DOCS and inmates from injuring him and seeking a transfer to a prison closer to New York City). Presently before the Court is defendants’ summary judgment motion. Under Sandin v. Conner and its progeny, 99 days in keeplock during a five to fifteen year prison sentence does not create a liberty interest entitling the prisoner to constitutional due process protections. Nor is 99 days keeplock confinement sufficiently egregious to state a claim of cruel and unusual punishment under the Eighth Amendment. Corrections Officer Johnson did not retaliate against Jackson since C.O. Johnson was required by state regulations to issue Jackson the misbehavior report for possessing a weapon. Neither Joe Jackson’s nor Ruby Jackson’s claims that Joe Jackson was improperly transferred are cognizable since they have not alleged that defendants were personally involved in the transfer, and in any event, prison officials have broad discretion to transfer prisoners and inmates’ relatives have no constitutional rights as to prison transfers. Accordingly, for the reasons set forth below, I recommend that defendants’ summary judgment motion be granted. FACTS On January 8, 1996, while Jackson was incarcerated in Fishkill Correctional Facility serving a five to fifteen year sentence for assault in the first degree (Jackson 3/11/98 Letter Ex. B & Cardinale 3/10/98 Letter Ex. A: Sentence Term Record), Jackson asked to be placed in protective custody to avoid problems with other prisoners. (Cplt. ¶ 1 & Ex. A2; Jackson 56.1 Stmt, at p. 2 ¶ 1.) The next day, Lieutenant Eull spoke with Jackson about why he wanted to be placed in protective custody. (Cplt. ¶ 2; Jackson 56.1 Stmt, at p. 4 ¶ 2.) During the meeting, defendant Correction Officer Thomas Johnson, who worked in the unit in which Jackson was housed, presented Lt. Eull with a list of inmates who C.O. Johnson said were harassing Jackson. (Cplt. ¶ 2; Jackson 56.1 Stmt, at p. 4 ¶ 2.) Jackson, however, did not agree, and refused to implicate the other inmates. (Jackson 56.1 Stmt, at p. 4 ¶ 2; Cplt. ¶¶ 3-4.) A few hours after the meeting, Lieutenant Eull ordered Jackson into protective custody. (Jackson 56.1 Stmt, at p. 4 ¶2; Cplt. ¶3.) C.O. Johnson took Jackson to the protective custody unit. (Jackson 56.1 Stmt, at p. 4 ¶2; Cplt. ¶3.) Jackson alleges that on the way to the protective custody unit, C.O. Johnson “made threats at me, because I did not implicate a particular inmate named, N. Reed, who had grieved him (officer Johnson) previously for his racially motivated attacks against black inmate.” (Jackson 56.1 Stmt, at p. 4 ¶ 2; Cplt. ¶ 3.) Approximately three hours after Jackson was placed in protective custody, Johnson began packing up Jackson’s property in order to transfer it to the protective custody housing unit. (Johnson Aff. ¶ 4; see also Jackson 56.1 Stmt, at p. 5; Cplt. ¶ 4; Defs.’ 56.1 Stmt. ¶ 3.) Jackson’s property was stored in a cube located in a dorm to which Jackson estimates 60 other inmates had access. (Johnson Aff. ¶4 & Ex. A; Jackson 56.1 Stmt, at p. 5; Cplt. ¶ 4 .) C.O. Johnson found hidden in a box of envelopes in Jackson’s cube a state-issued razor “that had the end and guards removed exposing the blade.” (Johnson Aff. ¶ 4 & Ex. A; Defs.’ Rule 56.1 Stmt. ¶ 4; see also Jackson 56.1 Stmt, at pp. 3, 5; Cplt. IT 4.) C.O. Johnson determined that the damaged razor could “be used as a weapon and thus pose[d] a threat to life, health and security.” (Johnson Aff. ¶ 4; Defs.’ Rule 56.1 Stmt. ¶ 5.) C.O. Johnson issued a misbehavior report charging Jackson with violating Rule 113.10, which states that “ ‘[ijnmates shall not make, possess, sell or exchange any item of contraband that may be classified as a weapon by description, use or appearance.’” (Johnson Aff. ¶ 4 & Ex. A: 1/9/96 Misbehavior Report; Defs.’ 56.1 Stmt. ¶ 6; Jackson 56.1 Stmt, at p. 6 ¶ 3; Cplt. ¶ 5 & Ex. A-l: Misbehavior Report.) Jackson’s Tier III Disciplinary Hearing The most serious prison disciplinary charges are considered at Tier III hearings. 7 NYCRR Ch. Y Part 254. At a Tier III hearing, the maximum penalty that may be imposed is keeplock or SHU confinement for a period of time limited only by the length of the inmate’s sentence, as well as a loss of good time credit and privileges. 7 NYCRR 254.71(a)(1). See generally Ruiz v. Selsky, 96 Civ.2003, 1997 WL 137448 at *1 (S.D.N.Y. March 24, 1997) (Peek, M.J.). This case does not involve any loss of good time credits. On January 18, 1996, Jackson’s Tier III disciplinary hearing was held. (Defs.’ 56.1 Stmt. ¶ 7; Cplt. ¶¶ 5-6; Jackson 56.1 Stmt, at p. 6.) The hearing officer (who was neither defendant Johnson nor defendant Goord) found Jackson guilty and sentenced him to 99 days of keeplock and 99 days loss of privileges. (Jackson 56.1 Stmt, at p. 6 ¶ 4; Cplt. ¶ 6(i) & Ex. C: Hearing Disposition Report; Cplt. Ex. 5: Article 78 Petition ¶ 23.) Jackson’s prison administrative appeals were all denied. (Jackson 56.1 Stmt, at p. 6 ¶ 4; Cplt. ¶ 6(ii) & Ex. D: 3/18/96 Review of Superintendent’s Hearing; Defs.’ 56.1 Stmt. ¶7.) Jackson claims that “the evidence [presented at the Tier III hearing] was clearly tainted” and should have resulted in a dismissal of the charge. (Jackson 56.1 Stmt, at p. 6 ¶ 4; Cplt. ¶ 6.) Jackson also claims that his appointed assistant refused to help him. (Cplt. ¶ 6; Jackson 56.1 Stmt, at p. 6 ¶ 4.) Jackson further claims that the hearing officer violated his constitutional due process rights as well as his Eighth Amendment rights, by finding him guilty of “false” charges. (Jackson 56.1 Stmt, at p. 6 ¶4; Cplt. ¶ 6.) On February 28, 1996, Jackson was transferred from Fishkill, a medium security prison, to Auburn Correctional Facility, a maximum facility prison in upstate New York approximately 300 miles from New York City. (Cplt.1l 7.) Deputy Superintendent of Security for Fishkill Robert Ercole states that Jackson was transferred because of his “unsuitable behavior at Fishkill ([having been] found guilty at a prison disciplinary hearing of possession of contraband), and because he was being threatened by other Fishkill inmates.” (Ercole Aff. ¶ 3.) ANALYSIS To prevail in a § 1983 action, a plaintiff must demonstrate that he has been denied a constitutional or federal statutory right and that the deprivation occurred under color of state law. See 42 U .S.C. § 1983; West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 2254-55, 101 L.Ed.2d 40 (1988); Williams v. Kane, 95 Civ. 0379, 1997 WL 527677 at *3 (S.D.N.Y. Aug.25, 1997) (Peck, M.J.). “Section 1983 itself,” however, “creates no substantive rights; it provides only a procedure for redress for the deprivation of rights established elsewhere.” Sykes v. James, 13 F.3d 515, 519 (2d Cir.1993) (citation omitted), cert. denied, 512 U.S. 1240, 114 S.Ct. 2749, 129 L.Ed.2d 867 (1994); accord, e.g., Williams v. Kane, 1997 WL 527677 at *3; Ruiz v. Selsky, 96 Civ.2003, 1997 WL 137448 at *4 (S.D.N.Y. March 24, 1997) (Peck, M.J.); Morris v. Dann, No. 95-CV-975, 1996 WL 732559 at *3 (N.D.N.Y. Dec.11, 1996); Zamakshari v. Dvoskin, 899 F.Supp. 1097, 1109 (S.D.N.Y. 1995) (Sotomayor, D.J. & Peck, M.J.). Proof that state procedural law was violated does not by itself constitute a deprivation of due process because “[f]ederal constitutional standards rather than state law define the requirements of procedural due process.” Russell v. Coughlin, 910 F.2d 75, 78 n. 1 (2d Cir.1990); accord, e.g., Williams v. Kane, 1997 WL 527677 at *3; Ruiz v. Selsky, 1997 WL 137448 at *4; Zamakshari v. Dvoskin, 899 F.Supp. at 1104. I. UNDER SANDIN V. CONNER, 99 DAYS IN KEEPLOCK DOES NOT CONSTITUTE AN ATYPICAL AND SIGNIFICANT DEPRIVATION OF A PROTECTED LIBERTY INTEREST A. Sandin v. Conner Defendants’ summary judgment motion on Jackson’s keeplock due process claim turns on the application of the Supreme Court’s decision in Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), which significantly changed the prisoner due process landscape. The Supreme Court there held: [W]e believe that the search for a negative implication from mandatory language in prisoner regulations has strayed from the real concerns undergirding the liberty protected by the Due Process Clause. The time has come to return to the due process principles we believe were correctly established and applied in Wolff and Meachum. Following Wolff, we recognize that States may under certain circumstances create liberty interests which are protected by the Due Process Clause. But these interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life. 515 U.S. at 483-84, 115 S.Ct. at 2300 (fns. & citations omitted). In Sandin, the prisoner was charged with a disciplinary infraction for physical interference with a correction officer, for using abusive or obscene language and for harassing employees. Id. at 475-76, 115 S.Ct. at 2295-96. The disciplinary committee refused the prisoner’s request to present witnesses, found him guilty of the alleged misconduct and sentenced him to 30 days disciplinary segregation in the prison’s Special Holding Unit (“SHU”). Id. The Supreme Court found that the inmate was not entitled to the procedural protections set forth in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). Sandin v. Conner, 515 U.S. at 487, 115 S.Ct. at 2302. The Supreme Court stated: We hold that Conner’s discipline in segregated confinement did not present the type of atypical, significant deprivation in which a state might conceivably create a liberty interest. The record shows that, at the time of Conner’s punishment, disciplinary segregation, with insignificant exceptions, mirrored those conditions imposed upon inmates in administrative segregation and protective custody. We note also that the State expunged Conner’s disciplinary record with respect to the “high misconduct” charge 9 months after Conner served time in segregation. Thus, Conner’s confinement did not exceed similar, but totally discretionary confinement in either duration or degree of restriction. Indeed, the conditions at Halawa [prison] involve significant amounts of “lockdown time” even for inmates in the general population. Based on a comparison between inmates inside and outside disciplinary segregation, the State’s actions in placing him there for 30 days did not work a major disruption in his environment. Id. at 486, 115 S.Ct. at 2301 (fns. omitted). As a result of Sandin, the Second Circuit has announced a two-part standard which prisoners must satisfy to establish a procedural due process claim due to segregated confinement: To prevail, [the plaintiff inmate] must establish both that [1] the confinement or restraint creates an “atypical and significant hardship” under Sandin, and that [2] the state has granted its inmates, by regulation or statute, a protected liberty interest in remaining free from that confinement or restraint. Frazier v. Coughlin, 81 F.3d 313, 317 (2d Cir.1996); accord, e.g., Arce v. Walker, 139 F.3d 329, 333-34, 1998 WL 119612 at *3 (2d Cir.1998); Wright v. Coughlin, 132 F.3d 133, 136 (2d Cir.1998); Williams v. Kane, 95 Civ. 0379, 1997 WL 527677 at *4 (S.D.N.Y. Aug.25, 1997) (Peck, M.J.); Ruiz v. Selsky, 96 Civ.2003, 1997 WL 137448 at *5 (S.D.N.Y. March 24, 1997) (Peck, M.J.); Santana v. Keane, 90 Civ. 6309, 1996 WL 465751 at *3 (S.D.N.Y. Aug.14, 1996). A prisoner who satisfies both of these elements would be entitled to the procedural due process protections enunciated by Wolff v. McDonnell, 418 U.S. at 556-58, 94 S.Ct. at 2974-75, and its progeny. See, e.g., Foxworth v. Selsky, No. 95-CV-1168, 1998 WL 59448 at *2, *4 (N.D.N.Y. Feb.9, 1998); Charles v. Coughlin, 985 F.Supp. 88, 93 (E.D.N.Y.1997); Nicholas v. Remillard, No. 92-CV-900, 1997 WL 711385 at *5 (N.D.N.Y. Nov.13, 1997); Williams v. Kane, 1997 WL 527677 at *3 & n. 1; Ruiz v. Selsky, 1997 WL 137448 at *5; Pacheco v. Vanwyk, No. 94-CV-456, 1997 WL 642540 at *8 (N.D.N.Y. Oct.15, 1997); Barnes v. Starks, 95 Civ. 4891, 1996 WL 648956 at *3 & n. 4 (S.D.N.Y. Nov.6, 1996); Santana v. Keane, 1996 WL 465751 at *3 & n. 1. B. Edwards v. Balisok and Its Interpretation In May 1997, two years after its Sandin decision, the Supreme Court decided Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997). Edwards involved a prisoner § 1983 action seeking damages for alleged due process violations during a prison disciplinary proceeding that resulted in a punishment of disciplinary segregation and loss of good time credits. 117 S.Ct. at 1587. Without even mentioning Sandin, the Supreme Court held that a § 1983 damage claim would not lie because it necessarily implied the invalidity of the prisoner’s punishment which had not yet been set aside. The Supreme Court’s opinion in Edwards began with a discussion of the Supreme Court’s prior Heck v. Humphrey decision: In Heck v. Humphrey, 512 U.S. 477, 487, 114 S.Ct. 2364, 2372-73, 129 L.Ed.2d 383 (1994), this Court held that a state prisoner’s claim for damages is not cognizable under 42 U.S.C. § 1983 if “a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence,” unless the prisoner can demonstrate that the conviction or sentence has previously been invalidated. This ease presents the question whether a claim for damages and declaratory relief brought by a state prisoner challenging the validity of the procedures used to deprive him of good-time credits is cognizable under § 1983. Edwards v. Balisok, 117 S.Ct. at 1586. Heck, which Edwards relied upon, was a § 1983 claim for due process violations during a state criminal prosecution, a suit that the Supreme Court analogized to a malicious prosecution action. In Heck, the Supreme Court held: We hold that, in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. Thus, when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must he dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. But if the district court determines that the plaintiffs action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit. Heck v. Humphrey, 512 U.S. at 486-87, 114 S.Ct. at 2372-73 (fns. omitted & emphasis added). Edwards applied Heck to a prisoner’s challenge to the prison disciplinary proceeding that resulted in a deprivation of good time credits: “We conclude, therefore, that [the plaintiff inmate’s] claim for declaratory relief and money damages, based on allegations of deceit and bias on the part of the [prison] decisionmaker that necessarily imply the invalidity of the punishment imposed, is not cognizable under § 1983.” Edwards v. Balisok, 117 S.Ct. at 1589. There is a Circuit split as to Edwards’ effect on § 1983 due process claims concerning prison disciplinary proceedings that result in SHU/keeplock punishment but no loss of good time credits. In Stone-Bey v. Barnes, 120 F.3d 718 (7th Cir.1997), the Seventh Circuit dismissed a § 1983 claim seeking damages for prison disciplinary segregation without loss of good time credit, citing Heck v. Humphrey and Edwards v. Balisok. Stone-Bey v. Barnes, 120 F.3d at 719, 721-22. The Seventh Circuit explained: Does it make any difference in applying Heck that the sentence imposed was one of disciplinary segregation alone, as opposed to segregation coupled with a loss of good-time credits? ... In our view, it does not. The Supreme Court was concerned in Heck not only with the particular sentence imposed, but also with the fact of the prisoner’s conviction itself_ The “conviction” in the prison disciplinary sense is the finding of guilt on the disciplinary charge, and if success on the plaintiff’s section 1983 claim necessarily would imply the invalidity of that finding, then Heck bars the claim until such time as its requirements are satisfied .... It is clear as well that those requirements can be met even where the sentence imposed is only one of disciplinary segregation. In this case, for example, [plaintiff] could have satisfied Heck by pursuing his administrative appeals within the state system ..., or by filing a petition for a writ of habeas corpus in federal district court.... Given that, we find the instant prison disciplinary “judgment” to be within the scope of Heck. Stone-Bey v. Barnes, 120 F.3d at 721 (emphasis added). In contrast, the D.C. Circuit has limited Edwards to prison disciplinary cases involving a loss of good time credits: We conclude, however, that [plaintiffs] suit, which challenges only his placement in administrative segregation, is not of the type to which it is appropriate to apply Preiser and its progeny. The [Supreme] Court has never deviated from Preiser’s clear line between challenges to the fact or length of custody and challenges to the conditions of confinement. In Edwards, the Court was careful to respect the distinction drawn by Preiser, repeatedly characterizing the plaintiffs claim as one that would “necessarily imply the invalidity of the deprivation of his good-time credits” and therefore hasten his release. Heck, too, observed that the damages action in that ease was in effect an attack on “ ‘the fact or length of confinement.’ ” The Court also did not question the plaintiffs invocation of section 1983 in Sandin, a case in which the underlying prison disciplinary proceeding affected only the plaintiffs conditions of confinement, not the duration of his sentence. Brown v. Plaut, 131 F.3d 163, 167-68 (D.C.Cir.1997) (citations & fns. omitted, emphasis added). The D.C. Circuit explicitly rejected the Seventh Circuit’s contrary view: We recognize that one court of appeals has applied Edwards to a case in which the prisoner was subject only to disciplinary segregation, and not to loss of good time or any other change in the length of confinement. See Stone-Bey v. Barnes, 120 F.3d 718, 721 (7th Cir.1997). We have found no other court of appeals decisions reaching this conclusion, and for the reasons set out in the text, we do not find its reasoning persuasive. Brown v. Plaut, 131 F.3d at 168 n. 5. Several Southern District decisions have utilized Edwards to dismiss prisoner § 1983 due process claims challenging disciplinary confinement without loss of good time credits. For example, in Aziz Zarif Shabazz v. Pico, 994 F.Supp. 460 (S.D.N.Y.1998), where the prisoner’s § 1983 suit challenged a prison disciplinary hearing that resulted in 90 days in SHU and 90 days loss of privileges (but no loss of good time credits), Judge Sotomayor dismissed under Edwards: In Edwards v. Balisok, the Supreme Court held that a “claim for damages and declaratory relief brought by a state prisoner challenging the validity of the procedures” is not cognizable under 42 U.S.C. § 1983 “where the allegations of due process violations, if true, would ‘necessarily imply the invalidity of the punishment imposed’ unless the prisoner establishes that the determination at issue has previously been invalidated.” “[T]he Supreme Court is sending a loud message: an inmate cannot seek money damages for alleged deprivations arising out of a prison disciplinary hearing by commencing an action under § 1983 unless the results of that hearing already have been invalidated.” As in Edwards, the plaintiff here is challenging the impartiality and bias of the hearing officers. Because plaintiffs allegations necessarily imply the invalidity of the dispositions of these two disciplinary hearings, plaintiffs claims under § 1983 are precluded by Edwards. Aziz Zarif Shabazz v. Pico, 994 F.Supp. 460, 1998 WL 65987 at *9 (citations omitted); see also Jenkins v. Haubert, 95 Civ. 5453, 1998 WL 148332 at *2-3 (S.D.N.Y. March 30, 1998) (Mukasey, D.J.); Odom v. Coombe, 95 Civ. 6378, 1998 WL 120361 at *3 (S.D.N.Y. March 18, 1998) (Chin, D.J.); Burnell v. Coughlin, 975 F.Supp. 473, 477-79 (W.D.N.Y.1997); Scott v. Scully, 93 Civ. 8777, 1997 WL 539951 at *2 (S.D.N.Y. Aug.28, 1997) (Baer, D.J.); Sims v. Artuz, 96 Civ. 0216, 1997 WL 527882 at *11 (S.D.N.Y. Aug.25, 1997) (Preska, D.J.); Higgins v. Coombe, 95 Civ. 8696, 1997 WL 328623 at *9-10 (S.D.N.Y. June 16, 1997) (Sotomayor, D.J.). On the other hand, in dicta in Brodie v. Kuhlman, 96 Civ. 0328, 1997 WL 411932 at *1-2 (S.D.N.Y. July 23, 1997), Judge Baer indicated that a challenge to disciplinary confinement without loss of good time credits can be raised in a § 1983 action, explaining that “[bjecause confinement to SHU goes to the conditions of confinement, as opposed to the ‘fact or duration’ of confinement, § 1983 appears to be an appropriate vehicle with an appropriate remedy.” Brodie v. Kuhlman, 1997 WL 411932 at *1 (citation omitted). The Second Circuit has not directly addressed Edwards’ application to § 1983 claims about prison disciplinary proceedings that result in disciplinary confinement without loss of good time credits. After Edwards, however, the Second Circuit has decided a number of § 1983 disciplinary confinement due process eases on Sandin grounds without mentioning Edwards. See, e.g., Arce v. Walker, 139 F.3d 329 (2d Cir.1998); Scott v. Albury, 138 F.3d 474 (2d Cir.1998); Wright v. Coughlin, 132 F.3d 133 (2d Cir.1998); Sealey v. Giltner, 116 F.3d 47 (2d Cir.1997). Moreover, there are scores of post-Edwards district court decisions from within the Second Circuit that analyze § 1983 prison disciplinary confinement cases under Sandin without addressing Edwards. (See eases cited at pages 360-62 below.) This Court agrees with the D.C. Circuit’s Brown v. Plaut opinion. A prisoner § 1983 case seeking damages for disciplinary confinement without loss of good time credits should be viewed as a condition of confinement case and therefore should be analyzed under Sandin; such a case does not affect the duration of confinement and thus does not need to be examined under Heck and Edwards. Moreover, if Edwards were applicable to disciplinary confinement without good time loss cases, the Supreme Court would have said so in Sandin (it could have decided Sandin using a Heck-Edwards analysis without going into the atypical and significant hardship standard) or at least in Edwards. The Supreme Court’s decision of Edwards shortly after Sandin is an indication that Edwards applies only in loss of gooc} time credit cases and not where the only punishment is disciplinary confinement. This conclusion also is recognized implicitly in the recent Second Circuit disciplinary confinement decisions that employ a Sandin analysis, without mentioning Edwards. C. Application of Sandin to Conñnement of 99 Days in Keeplock The Second Circuit has clearly instructed that the Sandin analysis requires a factual inquiry as to the length and conditions of confinement: The language and analysis in Sandin make clear that the Court did not intend to suggest that discipline in segregated confinement could never present such an “atypical, significant deprivation.” [W]e now state explicitly: Sandin did not create a per se blanket rule that disciplinary confinement may never implicate a liberty interest.... [Djistrict courts must examine the circumstances of a confinement to determine whether that confinement affected a liberty interest. Miller v. Selsky, 111 F.3d 7, 9 (2d Cir.1997); see, e.g., Wright v. Coughlin, 132 F.3d 133, 137 (2d Cir.1998); Sealey v. Giltner, 116 F.3d 47, 52 (2d Cir.1997) (noting the “desirability of fact-finding before determining whether a prisoner has a liberty interest in remaining free from segregated confinement”); Brooks v. DiFasi 112 F.3d 46, 48-49 (2d Cir.1997); Williams v. Kane, 95 Civ. 0379, 1997 WL 527677 at *5-6 (S.D.N.Y. Aug.25, 1997) (Peck, M.J.); Wright v. Miller, 973 F.Supp. 390, 394 (S.D.N.Y.1997) (“district courts are required to make factual findings with respect to the conditions of confinement at issue in each case”). The factors a district court should consider in determining whether an inmate has suffered “atypical and significant” hardship under Sandin include: (1) the effect of disciplinary action on the length of prison confinement; (2) the extent to which the conditions of the disciplinary segregation differ from other routine prison conditions; and (3) the duration of the disciplinary segregation imposed compared to discretionary confinement. Wright v. Coughlin, 132 F.3d at 136; see also, e.g., Foxworth v. Selsky, No. 95-CV-1168, 1998 WL 59448 at *1 n. 2 (N.D.N.Y. Feb 9, 1998). Duration is one of the most important factors in that analysis. See, e.g., Arce v. Walker, 139 F.3d 329, 336-37, 1998 WL 119612 (2d Cir.1998); Scott v. Albury, 138 F.3d 474, 478, 1998 WL 100549 (2d Cir.1998); Wright v. Coughlin, 132 F.3d at 136-37; Brooks v. DiFasi 112 F.3d at 48-49; Husbands v. McClellan, 990 F.Supp. 214, 216-17, 1998 WL 24232 (W.D.N.Y.1998); Warren v.. Irvin, 985 F.Supp. 350, 353 (W.D.N.Y.1997); Kingwood v. Coombe, 96 Civ. 0432, 1997 WL 323913 at *4 (S.D.N.Y. June 13, 1997); Zaire v. Mitchell, No. 95-CV-1172, 1997 WL 176309 at *3 (N.D.N.Y. April 10, 1997) (“Most courts look to the actual length of the sentence imposed in the disciplinary hearing to determine whether a liberty interest exists”), aff'd, 131 F.3d 132 (2d Cir.1997); Cespedes v. Coughlin, 956 F.Supp. 454, 472 (S.D.N.Y.) (“The case law suggests that it is the length of SHU confinement which is the crucial consideration, particularly where the inmate has alleged no particular hardship other than the term of confinement itself.”), vacated, 969 F.Supp. 254 (S.D.N.Y.1997); see also cases cited below. The Second Circuit’s recent Sandin pronouncement makes clear that it is the punishment actually imposed on the prisoner, and not the potential punishment that could have been imposed at the Tier III hearing, that controls the Sandin analysis. Scott v. Albury, 138 F.3d 474, 1998 WL 100549 at *3-5; see also, e.g., Husbands v. McClellan, 990 F.Supp. 214, 1998 WL 24232 at *2; Warren v. Irvin, 985 F.Supp. at 353; Beaman v. Coombe, 96 Civ. 3622, 1997 WL 538833 at *4 n. 3 (S.D.N.Y. Aug.29, 1997); Ruiz v. Selsky, 96 Civ. 200