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This is an appeal from a judgment entered in the United States District Court for the Northern District of New York (McCurn, Ch.J.) dismissing plaintiff's complaint pursuant to Fed.R.Civ.P. 12(b)(6) for "failure to state a claim upon which relief can be granted." Plaintiff, an inmate at the Clinton Correctional Facility, alleged that defendants confined him to his cell and denied him any opportunity to make a statement challenging his confinement until a disciplinary hearing seven days later. The district court adopted the report-recommendation of Magistrate Gustave J. DiBianco finding that plaintiff had pleaded a prima facie due process violation. The district court held, however, in accordance with the magistrate's recommendation, that defendants were entitled to qualified immunity and dismissed the complaint. The court determined that it was objectively reasonable for defendants to believe that New York prison regulations, providing for a disciplinary hearing within seven days, satisfied the constitutional requirement that an inmate in administrative confinement be afforded an opportunity to be heard within a reasonable time. See Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983).

On appeal, Gittens contends the law was clear at the time of his confinement that defendants could not deny him an opportunity to be heard, and therefore that defendants are not entitled to qualified immunity. We hold that the failure of New York regulations to provide inmates an adequate opportunity to be heard within a reasonable time of their administrative confinement violates the due process requirements enunciated in Helms, but that defendants acted reasonably in reliance on the New York regulations. For the reasons that follow, we affirm as modified.


891 F.2d 38 (1989) Darius GITTENS, Plaintiff-Appellant, v. Superintendent Eugene S. LeFEVRE, Review Officer Lt. Kavanaugh, Correction Officer J. Gillen, Sergeant Goodrich, Defendants-Appellees. No. 90, Docket 88-2459. United States Court of Appeals, Second Circuit.

Argued September 11, 1989. Decided November 29, 1989.

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