14-805-pr
Jamison 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.

      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 30th day of June, two thousand fifteen.

PRESENT: PIERRE N. LEVAL,
                 CHESTER J. STRAUB,
                 REENA RAGGI,
                                 Circuit Judges.
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RANDY JAMISON,
                                 Plaintiff-Appellant,

                        v.                                                  No. 14-805-pr

SUPERINTENDENT BRIAN FISCHER, Commissioner,
LT. TOKARZ, Hearing Officer, Green Haven Correctional
Facility, DIRECTOR NORMAN BEZIO, Director of
Special Housing Unit,
                                 Defendants-Appellees.
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APPEARING FOR APPELLANT:                          ERICK M. SANDLER (Jaime Bachrach, on the
                                                  brief), DAY PITNEY LLP, Hartford,
                                                  Connecticut.

APPEARING FOR APPELLEES:                         ANDREA OSER, Deputy Solicitor General
                                                 (Barbara D. Underwood, Solicitor General;
                                                 David Lawrence III, Assistant Solicitor General,
                                                 on the brief), for Eric T. Schneiderman, Attorney


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                                            General of the State of New York, New York,
                                            New York.

       Appeal from a judgment of the United States District Court for the Southern District

of New York (Richard J. Sullivan, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on December 4, 2013, is AFFIRMED.

       Plaintiff Randy Jamison challenges (1) the July 11, 2013 award of summary

judgment to defendant Mark Tokarz, a hearing officer at Green Haven Correctional

Facility, on Jamison’s claim that he was denied due process at a prison disciplinary

proceeding, see 42 U.S.C. § 1983; and (2) the September 27, 2012 dismissal of his

complaint against defendant Norman Bezio, Director of the Special Housing Unit and

Inmate Disciplinary Program for the New York State Department of Correctional Services,

who allegedly upheld the due process violation on Jamison’s administrative appeal.

Jamison argues that the district court erred in concluding, as a matter of law, that

(1) Tokarz did not violate Jamison’s due process right to call witnesses at his prison

disciplinary hearing; (2) in any event, no such right was then clearly established; and

(3) Bezio lacked the requisite personal involvement in the alleged violation to support

§ 1983 liability. We assume the parties’ familiarity with the facts and record of prior

proceedings, which we reference only as necessary to explain our decision to affirm on the

ground of qualified immunity.

       Qualified immunity shields government officials from civil damages liability unless

(1) the official violated a statutory or constitutional right (2) that was clearly established at

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the time of the challenged conduct. See Reichle v. Howards, 

, 2093

(2012).   “[L]ower courts have discretion to decide which of the two prongs of

qualified-immunity analysis to tackle first.” Ashcroft v. al-Kidd, 

, 2080

(2011); see Zalaski v. City of Hartford, 

, 389 (2d Cir. 2013) (“Addressing the

latter question first is particularly appropriate where the former turns on difficult or novel

questions of constitutional or statutory interpretation, but it is nevertheless clear that the

challenged conduct was not objectively unreasonable in light of existing law.” (internal

quotation marks omitted)). We move directly to the second prong of analysis here.

       Jamison contends that his right to call witnesses at his prison disciplinary hearing

was clearly established by Wolff v. McDonnell, 

(1974), and that no

reasonable officer could have concluded otherwise.         Although Wolff v. McDonnell

recognized a right to call witnesses at prison disciplinary proceedings, that right is not

absolute. See 

accord Ponte v. Real, 

, 499 (1985) (recognizing

inmate’s right to call witnesses as “limited one”). Instead, it is tempered by prison

interests in keeping hearings “within reasonable limits,” refusing to call witnesses who

“may create a risk of reprisal or undermine authority,” and limiting “access to other

inmates to collect statements or to compile other documentary evidence.” Wolff v.

. Thus, an inmate’s request to call a particular witness at a

disciplinary hearing may be properly refused for “irrelevance, lack of necessity, or the

hazards presented in individual cases.” 

also be refused upon a reasonable

determination that the witness will not testify. See Silva v. Casey, 

, 22 (2d


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Cir. 1993) (holding that if witness “will not testify if called, it cannot be a ‘necessity’ to call

him,” and that prison official who “reasonably concludes that it would be futile to call a

witness to testify” does not violate inmate’s constitutional rights).

       Here, Tokarz denied Jamison’s witness requests on the final ground—futility.

Jamison nevertheless contends that Tokarz violated his constitutional rights by relying on

incomplete “Witness Refusal Forms” to make his decision, rather than conducting an

independent inquiry of the requested witnesses. But Jamison points to no federal law that

clearly alerted hearing officers that, in reaching a reasonable conclusion of futility, they

could not rely on a correction officer’s signed statement that, upon inquiry, an inmate

indicated an unwillingness to testify. Indeed, Jamison cites no case in which we have ever

held a hearing officer’s futility determination unreasonable, much less any precedent that

apprised hearing officers of the nature of any inquiry they might be expected to undertake.

Accordingly, existing precedent did not place the constitutional question “beyond debate,”

Ashcroft v. 

, and we therefore identify no error in the district

court’s conclusion that Tokarz was entitled to qualified immunity.

       That Tokarz may have violated state law in denying Jamison’s request does not alter

our conclusion. See N.Y. Comp. Codes R. & Regs. tit. 7, § 254.5. The relevant question

for qualified immunity purposes is whether the federal “constitutional right [an official]

was alleged to have violated was clearly established at the time of the violation.” Davis v.

Scherer, 

, 194 (1984) (internal quotation marks omitted). Thus, “[n]either

federal nor state officials lose their immunity by violating the clear command of a statute or


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regulation—of federal or of state law—unless that statute or regulation provides the basis

for the cause of action sued upon.” 

n.12. That is not the case here.

       Jamison’s claim that Bezio violated due process by affirming the disciplinary action

on administrative appeal is necessarily derivative of his claim against Tokarz. For the

reasons stated as to Tokarz, then, Bezio also was entitled to qualified immunity.1

       Jamison’s final argument—that Tokarz violated due process by refusing a request

for photographic evidence of the injuries allegedly inflicted on corrections

officers—merits little discussion. On this point, Jamison failed to exhaust administrative

remedies as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a).

Accordingly, we identify no error in the district court’s award of summary judgment on

this claim.

       We have considered Jamison’s remaining arguments and conclude that they are

without merit. We therefore AFFIRM the judgment of the district court.

                                   FOR THE COURT:
                                   CATHERINE O’HAGAN WOLFE, Clerk of Court




1
  In light of this conclusion, we need not address whether the district court correctly
dismissed the complaint against Bezio for lack of personal involvement. See Grullon v.
City of New Haven, 

, 139 (2d Cir. 2013) (noting that Ashcroft v. Iqbal, 

(2009) “may have heightened the requirements for showing a supervisor’s
personal involvement with respect to certain constitutional violations” but declining to
decide issue).

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