MIROSLAV LOVRIC, Magistrate Judge.
This matter has been referred to me for a Report and Recommendation by the Honorable Mae A. D'Agostino, United States District Judge. Currently before the Court, in this civil rights action filed by Roberto DeJesus ("Plaintiff') against Brian Chuttey and Donald Venettozzi (collectively "Defendants"), is Defendants' motion for summary judgment pursuant to Fed. R. Civ. P. 56. (Dkt. No. 23.) For the reasons set forth below, I recommend that Defendants' motion for summery judgment be granted.
Generally, liberally construed, Plaintiffs Complaint asserts a claim that Defendants violated his due process rights pursuant to the Fifth and Fourteenth Amendments and 42 U.S.C. § 1983. (Dkt. No. 1; Dkt. No. 7.) As relief, Plaintiff seeks (1) "[a] declaration that the acts and omissions . . . violated Plaintiff-['s] [d]ue [p]rocess rights of the Fifth and Fourteenth Amendments," (2) "[c]ompensatouy damages in the amount of $150.00 per day for each day that Plaintiff was wrongfully confined to special housing for the past eighteen months against each [D]efendant[]," (3) punitive damages in the amount of $100,000.00, and (4) costs and fees. (Dkt. No. 1 at 11; Dkt. No. 4.) The Court's Decision and Order dated September 5, 2018, thoroughly outlines Plaintiffs allegations and claims. (Dkt. No. 7.) Familiarity with the Complaint is assumed in this Report-Recommendation.
Unless otherwise noted, the following facts were asserted and supported by Defendants in their Rule 7.1 Statement and not denied by Plaintiff in a Rule 7.1 Response. (Compare Dkt. No. 23, Attach. 12 [Defs.' Rule 7.1 Statement], with Dkt. No. 28 [Pl.'s Response].)
1. Plaintiff Roberto DeJesus is an inmate of the New York State Department of Corrections and Community Supervision ("DOCCS"), who was convicted of robbery and criminal impersonation of a police officer.
2. At all relevant times, Plaintiff was housed at Auburn Correctional Facility ("Auburn CF").
3. Defendant Brian Chuttey was a Captain at Auburn CF and he served as a Hearing Officer in Plaintiff's Tier III disciplinary hearing in February and March of 2015.
4. Defendant Donald Venettozzi has been sued by Plaintiff because of his role in upholding Defendant Chuttey's guilty findings on administrative appeal related to that Tier III hearing.
5. Plaintiff brings this action pursuant to 42 U.S.C. § 1983, asserting that his Fifth Amendment and Fourteenth Amendment rights were violated because Defendant Chuttey did not independently interview two inmate witnesses who had refused to testify at his Tier III hearing.
6. In his Tier III hearing that began on February 18, 2015, Plaintiff was accused of (a) assaulting another inmate with a weapon, and (b) threatening staff.
7. Plaintiff received legal assistance from a non-defendant corrections officer, C.O. Robert Stanton because he was keep-locked pending his Tier III hearing.
8. C.O. Stanton determined that two of the inmate witnesses that Plaintiff wished to call—inmate Patrick Mooney (06-A-3386) and inmate Michael Ramsey (91-B-2334)—did not want to testify.
9. As part of his legal assistance, C.O. Stanton memorialized an "Assistant Form" that was dated February 16, 2015, and signed by he and Plaintiff. On the "Assistant Form," next to "Agrees to Testify," C.O. Stanton checked "No" for both inmate Mooney and inmate Ramsey.
10. C.O. Stanton checked the "No" line because both inmates personally told him that they did not agree to testify at the Plaintiffs Tier III hearing.
11. Before signing the Assistant Form, C.O. Stanton told Plaintiff that inmates Mooney and Ramsey did not agree to testify at his Tier III hearing. Then C.O Stanton had Plaintiff sign the Assistant Form indicating their refusal to testify.
12. At Plaintiffs Tier III hearing, Defendant Chuttey repeated, in Plaintiffs presence and for the record, that inmates Mooney and Ramsey refused to testify, and that therefore, they would not be called to testify at his Tier III hearing.
13. As hearing officer, Defendant Chuttey relied on C.O. Stanton's representations that he had checked with inmates Mooney and Ramsey and that they both refused to testify at the Plaintiffs Tier III hearing at issue in this lawsuit.
Generally, in support of their motion for summary judgment, Defendants assert the following two arguments: (1) the law is clear that, while a violation of state regulation, it was not a constitutional violation for Defendant Chuttey to fail to independently inquire why Inmates Mooney and Ramsey refused to testify at Plaintiffs Tier III disciplinary hearing, and (2) the claim against Defendant Venettozzi cannot stand independently when the claim against Defendant Chuttney is dismissed. (See generally Dkt. No. 23, Attach. 13 [Defs.' Mem. of Law].)
Generally, in his opposition, Plaintiff asserts the following three arguments: (1) he is suing Defendant Venettozzi "under [s]upervisorial [l]iability[] for violations of constitutional dimension" because he did not correct the violations of his subordinates and instead affirmed the unconstitutional conduct on appeal; (2) pro se complaints are to be held to less stringent standards than formal pleadings and to the extent that his complaint is dismissed sua sponte, Plaintiff should be afforded an opportunity to amend it
Under Fed. R. Civ. P. 56, summary judgment is warranted if "the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(a). A dispute of fact is "genuine" if "the [record] evidence is such that a reasonable jury could return a verdict for the [non-movant]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In determining whether a genuine issue of material fact exists, the Court must resolve all ambiguities and draw all reasonable inferences against the movant. Anderson, 477 U.S. at 255. In addition, "[the movant] bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the . . . [record] which it believes demonstrate[s] the absence of any genuine issue of material fact." Celotex v. Catrett, 477 U.S. 317, 323-24 (1986). However, when the movant has met its initial burden, the non-movant must come forward with specific facts showing a genuine issue of material fact for trial. Fed. R. Civ. P. 56(a), (c), (e).
Implied in the above-stated burden-shifting standard is the fact that, where a non-movant willfully fails to respond to a motion for summary judgment, a district court has no duty to perform an independent review of the record to find proof of a factual dispute-even if that nonmovant is proceeding pro se.
Of course, when a non-movant willfully fails to respond to a motion for summary judgment, "[t]he fact that there has been no [such] response . . . does not . . . [by itself] mean that the motion is to be granted automatically." Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996). Rather, as indicated above, the Court must assure itself that, based on the undisputed material facts, the law indeed warrants judgment for the movant. Champion, 76 F.3d at 486; Allen v. Comprehensive Analytical Group, Inc., 140 F.Supp.2d 229, 232 (N.D.N.Y. 2001) (Scullin, C.J.); N.D.N.Y. L.R. 7.1(b)(3). What the non-movant's failure to respond to the motion does is lighten the movant's burden.
For these reasons, this Court has often enforced Local Rule 7.1(a)(3) by deeming facts set forth in a movant's statement of material facts to be admitted, where (1) those facts are supported by evidence in the record, and (2) the non-movant has willfully failed to properly respond to that statement
To establish a procedural due process claim pursuant to 42 U.S.C. § 1983, a plaintiff must show that he (1) possessed an actual liberty interest, and (2) was deprived of that interest without being afforded sufficient process. Tellier v. Fields, 280 F.3d 69, 79-80 (2d Cir. 2000); Hynes v. Squillace, 143 F.3d 653, 658 (2d Cir. 1998); Bedoya v. Coughlin, 91 F.3d 349, 351-52 (2d Cir. 1996).
Although inmates retain their constitutional right to due process protections, "[Orison disciplinaiy proceedings are not part of a criminal prosecution, and the fully panoply of rights due a defendant in such proceedings does not apply." Wolff v. McDonnell, 418 U.S. 539, 556 (1974).
Luna v. Pico, 356 F.3d 481, 487 (2d Cir. 2004) (citations omitted). To pass muster under the Fourteenth Amendment, a hearing officer's disciplinaiy determination must also garner the support of at least "some evidence." Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 455 (1985); Luna, 356 F.3d at 487-88.
After carefully considering the matter, I recommend granting Defendants' motion for summary judgment for the reasons stated in their memorandum of law. (Dkt. No. 23, Attach. 13.) To those reasons, I add the following analysis, which is intended to supplement but not supplant Defendants' reasons.
Plaintiff's due process claims center on his inability to call two witnesses at the disciplinary hearing, which began on February 18, 2015, presided over by Defendant Chuttey at Auburn CF. (See generally Dkt. No. 1.)
Further, "[t]here is no indication in [the] Second Circuit or Supreme Court case law that a hearing officer must make an independent evaluation of the basis for the refusal to testify." Greene v. Coughlin, 93-CV-2805, 1995 WL 60020, at *14 (S.D.N.Y. Feb. 10, 1995) (holding that a Tier III hearing officer does not violate a prisoner's due process rights when he fails to investigate the reasons for an inmate refusing to testify); Jamison v. Fischer, 11-CV-4697, 2013 WL 5231457, at *3 (S.D.N.Y. July 11, 2013) (same); Dumpson v. Rourke, 96-CV-0621, 1997 WL 610652, at *1 (N.D.N.Y. Sept 28, 2006) (Pooler, J.) (same). "While [the] failure to make such an independent evaluation violates state regulations, it does not violate the complaining prisoner's federal constitutional rights." Abdur-Raheem v. Caffery, 13-CV-6315, 2015 WL 667528, at *6 (S.D.N.Y. Feb. 17, 2015) (citing Martinez v. Minogue, 06-CV-0546, 2008 WL 4241746, at *5-6 (N.D.N.Y. Sept. 11, 2008) (Hurd, J.)).
As a result, I reject Plaintiffs argument that Defendant Chuttey violated his constitutional rights by failing to independently contact Inmate Mooney and Inmate Ramsey to determine why they would not testify.
"Moreover, although [P]laintiff indicates that [Defendant Chuttey] failed to provide him with [] witness refusal form[s for Inmate Mooney and Inmate Ramsey] and seems to suggest that such form must be provided to an inmate at his or her disciplinary hearing, the undersigned notes that a violation of DOCCS procedures or state procedural regulations regarding disciplinary hearings do not, alone, demonstrate a federal due process claim under § 1983." Calmite v. Venettozzi, 17-CV-0919, 2018 WL 6069458, at *5 (N.D.N.Y. Oct. 29, 2018) (Hummel, M.J.) (citation omitted), adopted 2018 LW 6068414 (N.D.N.Y. Nov. 20, 2019) (Sharpe, J.).
For all of these reasons, I recommend granting Defendants' motion for summary judgment with respect to Defendant Chuttey.
It is well-established that a defendant cannot be liable pursuant to 42 U.S.C. § 1983 solely by virtue of being a supervisor, "`and [liability] cannot rest on respondeat superior."" Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003) (quoting Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003)). To establish responsibility on the part of a supervisory official for a civil rights violation, a plaintiff must demonstrate that the individual (1) directly participated in the challenged conduct; (2) after learning of the violation through a report or appeal, failed to remedy the wrong; (3) created or allowed to continue a policy or custom under which unconstitutional practices occurred; (4) was grossly negligent in managing the subordinates who caused the unlawful event; or (5) failed to act on information indicating that unconstitutional acts were occurring. Iqbal v. Hasty, 490 F.3d 143, 152-53 (2d Cir. 2007), rev'd on other grounds sub nova. Ashcroft v. Iqbal, 556 U.S. 662 (2009).
Where no reasonable factfinder could conclude that a constitutional violation occurred, there was no wrong for the supervisor to remedy, and no supervisor liability can exist as to the supervisor. Barns v. Annucci, 15-CV-0777, 2019 WL 1387460, at *15 (N.D.N.Y. Mar. 12, 2019) (Peebles, M.J.) ("Likewise, I have concluded that no reasonable factfinder could conclude that plaintiff's due process rights were violated. See Point III.C, supra. As a result, because no constitutional violation occurred, and there was no wrong to remedy, no supervisor liability can exist against defendant Venettozzi."), adopted 2019 WL 1385297 (N.D.N.Y. Mar. 27, 2019) (Sharpe, J.).
Since I find that Defendant Chuttey did not violate Plaintiffs constitutional rights, I correspondingly recommend granting Defendants' motion for summary judgment with respect to Defendant Venettozzi.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have fourteen (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court.
It is hereby respectfully
Emanuel M.
Hon Eric T. Schneiderman, Stephen M. Kerwin, Assistant Attorney General, of Counsel, Albany, NY, for the Defendants.
GARY L. SHARPE, Chief Judge.
Thereafter,
This action was filed on September 30, 2011. (See generally Compl.) In October 2012, following several delays attributable to
Before entering final judgment, this court routinely reviews all report and recommendation orders in cases it has referred to a magistrate judge If a party has objected to specific elements of the magistrate judge's findings and recommendations, this court reviews those findings and recommendations de novo. See Almonte v. N.Y. State Div. of Parole, No. 04-cv-484, 2006
As an initial matter, the court must make sense of
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At the outset, the court is cognizant of the fact that
More fundamentally, however,
ANDREW T. BAXTER, United States Magistrate Judge.
Presently before the court is the defendants' motion for summary judgment pursuant to Fed.R.Civ.P. 56. (Dkt. No. 42). This matter was referred for Report and Recommendation on May 22, 2013 by Chief U.S. District Judge Gary L. Sharpe, pursuant to 28 U.S.C. § 636(b) and Local Rules N.D.N.Y. 72.3(c).
On October 31, 2012, defendants filed a motion to dismiss plaintiffs civil rights action for failure to state a claim pursuant to Fed.R.Civ 12(b)(6). (Dkt. No. 31). Plaintiff responded (Dkt. No. 36) and defendants filed a reply (Dkt. No. 37) By Decision and Order dated March 29, 2013, this court converted the Rule 12(b)(6) motion to one for summary judgment, and provided the parties with an opportunity to file supplemental papers (Dkt. No. 38). On May 20, 2013, defendants filed a complete motion for summary judgment (Dkt. Nos. 42, 43), but also continued to rely on papers submitted in connection with the prior Rule 12(b)(6) motion Plaintiff has opposed the motion for summary judgment (Dkt. No. 52); he has also filed two motions for preliminary injunctions, one of which included a motion for appointment of counsel (Dkt.Nos. 54, 58), to which defendants have responded (Dkt.Nos. 57, 59).
For the reasons set forth below, this court recommends that defendants' motion for summary judgment be granted on most of the grounds raised therein, and that plaintiffs complaint be dismissed in its entirety In light of this recommendation, this court also recommends that plaintiffs motion for appointment of counsel be denied and his motions for preliminary injunctions be found moot.
On and before June 15, 2011, plaintiff was confined by the New York Department of Corrections and Community Supervision ("DOCCS") at the Clinton Correctional Facility ("Clinton") in Danemora, in the northeastern corner of New York Plaintiff alleges that, on that date, Correction Officer ("C.O.") P.
Lt. Chase
On July 7, 2011, shortly after his arrival at Coxsackie, Counselor PaquetteMonthie issued plaintiff a misbehavior report for placing telephone calls to his wife from other facilities, in violation of an order of protection issued in connection with an earlier prosecution of plaintiff. (Compl., Dkt. No. 1 at 7, Dkt. No. 31-2 at 2). Plaintiff alleges that defendant Paquette-Monthie wrote the misbehavior report in retaliation for plaintiffs complaint about C.O.
Defendant Eric Gutwein
Liberally construed, plaintiffs complaint alleges that his constitutional rights under the First, Eighth, and Fourteenth Amendments were violated because (1) he was subjected to cruel and unusual punishment by defendant
Defendant
Defendant Chase, who found plaintiff not guilty on the disciplinary charges filed by C.O.
DOCCS Counselor Paquette-Montie filed a misbehavior report against plaintiff at Coxsackie after learning, through her intake interview of plaintiff and information in his file, that he had been contacting his wife by telephone Such contact violated an order-of-protection issued against plaintiff and contravened prior direct orders from the staff at Sing Sing that plaintiff should stop calling his wife. Defendant Paquette-Monthie denies knowing defendants
Defendant Gutwein, who presided over the disciplinary hearing at Coxsackie also denied knowing defendant
Summary judgment is appropriate where there exists no genuine issue of material fact and, based on the undisputed facts, the moving party is entitled to judgment as a matter of law Fed.R.Civ.P 56; Salahuddm v. Good, 467 F.3d 263, 272-73 (2d Cir.2006). "Only disputes over ["material"] facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment". Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). It must be apparent that no rational finder of fact could find in favor of the non-moving party for a court to grant a motion for summary judgment. Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir.1994).
The moving party has the burden to show the absence of disputed material facts by informing the court of portions of pleadings, depositions, and affidavits which support the motion. Celotex Corp. v. Catlett, 477 U.S. 317, 323 (1986). If the moving party satisfies its burden, the nonmoving party must move forward with specific facts showing that there is a genuine issue for trial. Salahuddin v. Goord, 467 F.3d at 273. In that context, the nonmoving party must do more than "simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). However, in determining whether there is a genuine issue of material fact, a court must resolve all ambiguities, and draw all inferences, against the movant. See United States v. Diebold, Inc., 369 U.S. 654, 655 (1962), Salahuddin v. Goord, 467 F.3d at 272.
Defendants contend that, notwithstanding plaintiff's claims to the contrary, he failed to initiate the grievance process, in a timely and proper manner, with respect to his complaints against defendants
The court concludes that there are issues of fact material to whether plaintiff has exhausted his administrative remedies with respect to the claims against defendant
The failure to exhaust is an affirmative defense that must be raised by the defendants. Jones v. Bock, 549 U.S. 199, 216 (2007); Johnson v. Testman, 380 F.3d 691, 695 (2d Cir.2004). As an affirmative defense, it is the defendants' burden to establish that plaintiff failed to meet the exhaustion requirements. See, e.g, Key v. Toussaint, 660 F.Supp.2d 518, 523 (S.D.N.Y.2009) (citations omitted).
The Supreme Court held that, in order to properly exhaust an inmate's administrative remedies, he must complete the administrative review process in accordance with the applicable state rules. Jones v. Bock, 549 U.S. at 218-19 (citing Woodford v. Argo, 548 U.S. 81 (2006)). In Woodford, the Court held that "propel' exhaustion means that the inmate must complete the administrative review process in accordance with the applicable procedural rules, including deadlines, as a prerequisite to bringing suit in federal court. 548 U.S. at 90-103.
The grievance procedure in New York is a three-tiered process The inmate must first file a grievance with the Inmate Grievance Resolution Committee (IGRC) N.Y. Comp.Codes R. & Regs. tit 7, §§ 701.5(a)(1) and (b). An adverse decision of the IGRC may be appealed to the Superintendent of the Facility Id. § 701.5(c). Adverse decisions at the Superintendent's level may be appealed to the Central Office Review Committee (CORC) Id. § 701.5(d). The court also notes that the regulations governing the Inmate Grievance Program encourage the inmate to "resolve his/her complaints through the guidance and counseling unit, the program area directly affected, or other existing channels (informal or formal) prior to submitting a grievance." Id. § 701.3(a) (Inmate's Responsibility).
At the same time that the Second Circuit decided Giano, it also decided four related cases, clarifying the law in the Second Circuit regarding the PLRA's exhaustion requirement, and specifying various Instances in which the requirement could be waived or excused.
In his response to defendants' summary judgment motion, plaintiff has filed additional documentation regarding some of his complaints to DOCCS about the alleged violations of his constitutional rights by defendant
Plaintiff also filed a July 18, 2011 memorandum from N. Ratliff, then the IGP Supervisor at Clinton, acknowledging receipt, from plaintiff, of a "complaint dated 7/14/11/6/24/11," which would appear to refer, in part, to plaintiff's "Affidavit of Service," notarized July 14, 2011 and addressed, inter alia, to Ratliff, regarding a grievance about defendant
Under applicable regulations,
Defendants contend that, even if plaintiff properly filed a timely initial grievance against defendant
Courts have consistently held that an inmate's general claim that his grievance was lost or destroyed does not excuse the exhaustion requirement. See e.g. Veloz v. New York, 339 F.Supp.2d 505, 516 (S.D.N.Y. 2004) (plaintiff's allegations that his grievances were misplaced or destroyed by corrections officers ultimately does not relieve him of the requirement to appeal those claims to the next level once it became clear that no response was forthcoming) (citing Martinez v. Williams, 186 F.Supp.2d 353, 357 (S.D.N.Y.2002) (same). "If a plaintiff receives no response to a grievance and then fails to appeal it to the next level, he has failed to exhaust his administrative remedies as required by the PLRA." Croswell v. McCoy, 01-CV-547, 2003
Plaintiff, however, has submitted documentation indicating that, after receiving no response to the initial grievance he claimed to have filed, he submitted "appeals" to the Superintendent at Clinton and to the IGP Supervisor and the Director of the IGP in Albany. A copy of plaintiff's purported "appeal" to Supt. LaValley, dated July 26, 2011, was attached to his complaint (Dkt. No. 1 at 13), although he has filed no additional documents acknowledging receipt of this "appeal." Copies of a further "appeal" addressed to the Director of the IGP in Albany and an IGP supervisor, part of which is dated "6-26-11" and part of which was dated 8-26-11," were also appended to the complaint (Dkt. No. 1 at 14-17), along with the "Affidavit of Service notarized on July 14, 2011 (Dkt. No. 1 at 18). Plaintiff submitted, with his response to the summary judgment motion, a letter dated September 6, 2011, from the offices of the Director of IGP in Albany (Karen Bellamy), acknowledging receipt of correspondence from plaintiff dated July 14, 2011. (Dkt. No. 52-11 at 13) As noted earlier, plaintiff's "Affidavit of Service" notarized on July 14th has receipt stamps indicating that DOCCS received a copy of it on September 1, 2011. The letter from Karen Bellamy's office returns plaintiff's correspondence, advising him that "you must submit your grievance or appeal directly to IGRC at the facility." (Dkt. No. 52-11 at 13).
While the documentation with respect to plaintiff's alleged "appeals" is far from conclusive, it supports his claim that, when he received no response to his purported initial grievance, he properly mailed an "appeal" to the Superintendent of the facility where the grievance was allegedly ignored
While the applicable regulations set time limits for filing appeals based on receipt of the written decision at an earlier stage, they do not set definitive deadlines for filing appeals when no response is ever received. See N.Y. Comp.Codes R. & Regs. tit. 7, §§ 701.5(c)(1) (an appeal to the Superintendent must be filed within seven calendar days
The various documents filed by plaintiff do not reflect that he made any written complaints about retaliation in connection with the adjudication of his disciplinary charges at Clinton by defendant Chase, or his transfer to Coxsackie, for which plaintiff blames defendant La Valley, until his submission to IGP in Albany—part of which was dated "6-26-11" and part of which was dated "8-26-2011." (Dkt. No. 52-11 at 17-20). It is clear that the portion of the submission dated June 26th is backdated because it purports to be an appeal of the grievance plaintiff states that he filed on approximately the same date and it references events, including plaintiff's misconduct charge at Coxsackie on July 7, 2013 (Paquette-Monthie Decl. ¶¶ 6-7, 11-12), which occurred well after June 26th. As noted above, the documents submitted by plaintiff indicate that his submission was not received in the office of the IGP Director in Albany until early September 2011. The court concludes that no reasonable fact finder could conclude that plaintiff filed an initial grievance with respect to the conduct of defendants Chase and LaValley until August 26, 2011, which is considerably longer than 21 or 45 days after the relevant "occurrences"-the adjudication of the misbehavior report at Clinton on June 22, 2011 (Chase Decl. ¶ 5) or plaintiff's transfer out of Clinton, which occurred on or about June 24, 2011 (LaValley Decl. ¶ 7 & Ex. B). Accordingly, the court concludes that these claims against defendants Carr and LaValley may be dismissed, on summary judgment, because of plaintiff's failure to exhaust his administrative remedies by filing a timely initial grievance.
Notwithstanding these factual disputes, the court concludes that, even accepting plaintiff's version of the relevant events, no reasonable fact finder could conclude that his Eighth Amendment rights were violated by defendant
Inmates enjoy Eighth Amendment protection against the use of excessive force, and may recover damages under 42 U.S.C. § 1983 for a violation of those rights. Hudson v. McMillian, 503 U.S. 1, 9-10 (1992). The Eighth Amendment's prohibition against cruel and unusual punishment precludes the "unnecessary and wanton infliction of pain." Gregg v. Georgia, 428 U.S. 153, 173 (1976); Sims v. Artz, 230 F.3d 14, 20 (2d Cir.2000). To sustain a claim of excessive force under the Eighth Amendment, a plaintiff must establish both objective and subjective elements. Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir.1999).
In order to satisfy the objective element of the constitutional standard for excessive force, the defendants' conduct must be "`inconsistent with the contemporary standards of decency.'" Whitely v. Albers, 475 U.S. 312, 327 (1986) (citation omitted); Hudson, 503 U.S. at 9. "[T]he malicious use of force to cause harm constitute[s] [an] Eighth Amendment violation per se[,]" regardless of the seriousness of the injuries Blyden, 186 F.3d at 263 (citing Hudson, 503 U.S. at 9). "The Eighth Amendment's prohibition of `cruel and unusual' punishments necessarily excludes from constitutional recognition de minims uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind." Hudson, 503 U.S. at 9-10 (citations omitted). "`Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights.'" Sims, 230 F.3d at 22 (citation omitted).
The subjective element requires a plaintiff to demonstrate the "necessary level of culpability, shown by actions characterized by wantonness." Id. at 21 (citation omitted) The wantonness inquiry "turns on `whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.'" Id. (quoting Hudson, 503 U.S. at 7). In determining whether defendants acted in a malicious or wanton manner, the Second Circuit has identified five factors to consider, the extent of the injury and the mental state of the defendant, the need for the application of force; the correlation between that need and the amount of force used; the threat reasonably perceived by the defendants; and any efforts made by the defendants to temper the severity of a forceful response." Scott v. Coughlin, 344 F.3d 282, 291 (2d Cir.2003).
In support of defendants' initial Rule 12(b)(6) motion, counsel contended that plaintiff's allegations regarding the June 15, 2011 incident in the Clinton mess hall established, at worst, that defendant
The court concludes that, even under plaintiff's version of the relevant events, a reasonable fact finder could not conclude that defendant
The objective prong of the standard is satisfied "when (a) the prisoner was `actually deprived of adequate medical care,' meaning prison officials acted unreasonably in response to an inmate health risk under the circumstances, and (b) `the inadequacy in medical care is sufficiently serious.' Bellotto v. County of Orange, 248 F. App'x 232, 236 (2d Cir.2007) (quoting Salahuddin v. Goord, 467 F.3d 263, 279-80 (2d Cir.2006)). If the "unreasonable care" consists of a failure to provide any treatment, then the court examines whether the inmate's condition itself is "sufficiently serious." Smith v. Carpenter, 316 F.3d 178, 185-86 (2d Cir.2003) When a prisoner alleges "a temporary delay or interruption in the provision of otherwise adequate medical treatment," the court must focus on the seriousness of the particular risk of harm that resulted from the challenged delay or interruption, rather than the prisoner's underlying medical condition alone." Id. at 185. The standard for determining when a deprivation or delay in a prisoner's medical need is sufficiently serious contemplates a condition of urgency that may result in degeneration of the patient's condition or extreme pain. Bellotto v. County of Orange, 248 F. App'x at 236 (citing, inter alia, Chance v. Armstrong, 143 F.3d at 702).
The subjective prong of the deliberate indifference test is satisfied when an official "knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it." Fanner v. Brennan, 511 U.S. 825, 847 (1994). A plaintiff is not required to show that a defendant acted or failed to act "for the very purpose of causing harm or with knowledge that harm will result," but must show that the official was aware of facts from which one could infer that "a substantial risk of serious harm" exists, and that the official drew that inference. Id. at 835, 837. The defendant must be subjectively aware that his or her conduct creates the risk, however, the defendant may introduce proof that he or she knew the underlying facts, but believed that the risk to which the facts gave rise was "insubstantial or non-existent." Fanner v. Brennan, 511 U.S at 844. Thus, the court stated in Salahuddin that the defendant's belief that his conduct posed no risk of serious harm "need not be sound so long as it is sincere," and "even if objectively unreasonable, a defendant's mental state may be nonculpable." Salahuddin v. Goord, 467 F.3d at 281.
While plaintiff claims that defendant
Evans v. Manos cogently summarizes how a prison inmates claim for a delay in medical treatment should be evaluated under the Eighth Amendment.
Evans v. Manos, 336 F.Supp.2d 255, 262 (W.D.N.Y.2004) (citations omitted). The Second Circuit has not resolved whether actual adverse medical effects are required, as a threshold matter, to state a viable Eighth Amendment claim relating to delayed medical care, but has indicated that a plaintiff must at least show that the delay significantly increased the risk for medical injury or similar serious adverse consequences Smith v. Carpenter, 316 F.3d at 188-89, n. 14, n. 15. The Court in Smith also observed, in the post-trial context, that, "although demonstrable adverse medical effects may not be required under the Eighth Amendment, the absence of present physical injury will often be probative in assessing the risk of future harm." Smith v. Carpenter, 316 F.3d at 188.
Plaintiff apparently contests the accuracy of subsequent medical records at several DOCCS facilities, which reflect no evidence of any significant long-teen effects of the alleged incident on June 15th, claiming that "he has expressed to medical staff in each facility of all the ongoing pain and suffering he has been force [sic] to live with due to all of the injuries he sustained from past and present incident...." (Pl's Reply to Michalek Decl. ¶ 6).
In any event, plaintiff still has offered no evidence to rebut defendants' well—documented position that the two-day delay before plaintiff saw the medical staff at Clinton about his very subjective and relatively minor medical complaints did not involve a significant risk of degeneration of his medical condition or require him to endure extreme pain. Bellotto v. Country of Orange, 248 F. App'x at 236. Thus, the court concludes that no reasonable fact finder could conclude that plaintiff can establish the objective element of a deliberate indifference claim. See, e.g., Vansertima v. Department of Corrections, 10 CV 3214, 2012
In order to establish a claim of retaliation for the exercise of a First Amendment right, plaintiff must show that he engaged in constitutionally protected speech or conduct, and that the protected activity was a substantial motivating factor for "adverse action" taken against him by defendants Bennett v. Goord, 343 F.3d 133, 137 (2d Cir.2003) (citing Gayle v. Gonyea, 313 F.3d 677 (2d Cir.2002), see also Hendricks v. Coughlin, 114 F.3d 390 (2d Cir.1997). The Second Circuit has defined "adverse action" in the prison context as "retaliatory conduct `that would deter a similarly situated individual of ordinary firmness from exercising ... constitutional rights.'" Gill v. Pidlypchak, 389 F.3d at 381 (citation omitted). This objective test applies whether or not the plaintiff was himself subjectively deterred from exercising his rights. Id.
To establish retaliation, the plaintiff must also establish a causal connection between the protected speech or conduct and the adverse action. Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir.2004). Although a "`plaintiff can establish a causal connection that suggests retaliation by showing that protected activity was close in time to the adverse action[,]' "[s]uch circumstantial evidence of retaliation, ... without more, is insufficient to survive summary judgment." Roseboro v. Gillespie, 791 F.Supp.2d 353, 370 (S.D.N.Y.2011) (citations omitted).
Even if plaintiff makes the appropriate showing of retaliation, defendants may avoid liability if they demonstrate that they would have taken the adverse action even in the absence of the protected conduct Id. at 371. "Regardless of the presence of retaliatory motive, ... a defendant may be entitled to summary judgment if he can show ... that even without the improper motivation the alleged retaliatory action would have occurred." Scott v. Coughlin, 344 F.3d 282, 287-88 (2d Cir.2003) (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)).
The court must keep in mind that claims of retaliation are "easily fabricated" and "pose a substantial risk of unwarranted judicial intrusion into matters of general prison administration." Accordingly, plaintiff must set forth non-conclusoly allegations to sustain a retaliation claim.
For retaliation claims, as for other section 1983 claims, a plaintiff "must show some tangible connection between the constitutional violation alleged and [a] particular defendant." Toole v. Connell, 9:04-CV-724 (LEK/DEP), 2008
In Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir.1986), the Second Circuit detailed the various ways in which a defendant can be personally involved in a constitutional deprivation, and thus be subject to individual liability. A supervisory official is personally involved if the supervisor directly participated in the infraction. Id. The defendant may have been personally involved if, after learning of a violation through a report or appeal, he or she failed to remedy the wrong. Id. Personal involvement may also exist if the official created a policy or custom under which unconstitutional practices occurred, or allowed such a policy or custom to continue. Id. Finally, a supervisory official may be personally involved if he or she were grossly negligent in managing subordinates who caused the unlawful condition. Id. See also Iqbal v. Hasty, 490 F.3d 143, 152-53 (2d Cir.2007) (citing Colon v. Coughlin, 58 F.3d 865, 873) (2d Cir.1995)), rev'd on other grounds, 556 U.S. 662 (2009).
Defense counsel argues that the retaliation claims should be dismissed because there was no causal connection between plaintiff's protected conduct and the alleged adverse actions against him, and because some defendants were not personally involved in any adverse action against plaintiff Those arguments require a close examination of the record regarding each defendant. Toole v. Connell, 2008
Plaintiff also alleges that, because of the complaint he wrote against defendant
Plaintiff's retaliation claim with respect to the misbehavior report at Coxsackie are also not viable. Although he did not make this allegation in his original complaint, plaintiff claimed, in response to the defendants' initial Rule 12(b)(6) motion and their later summary judgment motion, that C.O.
The complaint alleges that, when he could not "get" plaintiff at Clinton, C.O. Chase threatened to "get," i.e., retaliate against, plaintiff at the next facility. In response to the defendants' Rule 12(b)(6) motion and/or the instant summary judgment motion, plaintiff attributed further damaging admissions to Lt. Chase. first, that he talked about the order of protection against plaintiff, which was the impetus for the later disciplinary charges at Coxsackie (Dkt. No. 36 at 30; Pl.'s Reply to Chase Decl. ¶¶ 6-7, 9-10, Dkt. No. 52-7); and second, that he threatened to block plaintiff's transfer to Coxsackie (Pl.'s Reply to Defs.' Rule 7.1(a)(3) Stmt. ¶ 113, Dkt. No. 52 at 9, Pl.'s Reply to Chase Decl. ¶ 12).
Plaintiff's claims about Lt. Chase's admissions, which became more selfserving from the time plaintiff filed the initial complaint to the times he was defending his complaint against substantive defense motions, are, in the court's view, inherently implausible. It seems unlikely that defendant Chase would retaliate against an inmate based on a complaint against another officer in which he was not implicated.
In his sworn declaration, Lt. Chase states that he never threatened plaintiff, he had no knowledge of any complaints by plaintiff against C.O.
The complaint alleges that plaintiff sent Clinton Superintendent LaValley an initial complaint about defendant
As discussed above, plaintiff failed to administratively exhaust any retaliation claim involving the adjudication of the disciplinary charges at Clinton or his transfer from Clinton Furthermore, plaintiff's claims that defendants
Finally, to the extent the complaint suggests that defendant LaValley conspired with others at Coxsackie to retaliate against him, plaintiff provides no evidence whatsoever to counter Supt. LaValley's declaration that he did not know Counselor Paquette-Monthie, and that he did nothing to retaliate against plaintiff in connection with the filing of disciplinary charges against him at that separate facility (LaValley Decl. ¶¶ 13-15, Pl.'s Reply to LaValley Decl., Dkt. No. 52-8). Based on the authority cited above, it is clear that a claim of retaliation based on mere speculation by an inmate that a particular defendant was somehow involved in allegedly retaliatory action by others at a separate facility cannot survive summary judgment. In any event, as discussed below, plaintiff's claims of retaliation against the Coxsackie defendants are subject to dismissal on other grounds.
Defendants' initial Rule 12(b)(6) motion plaintiff's retaliation claims against Counselor Paquette-Monthie and Hearing Officer Gutwein argued that plaintiff did not plead any specific facts to support his bald speculation that the Clinton defendants enlisted the Coxsackie defendants to pursue retaliatory disciplinary charges against him (Defs.' Mem. in Support of Rule 12(b)(6) Mot. at 12). Plaintiff responded to this motion with the self-serving claim that defendant Paquette-Monthie told him that she issued the misbehavior report against him because he "filed a complaint against her friend at Clinton Annex." (Dkt. No. 36 at 31, 37, 40).
Based on the authority cited in note 22 above, it is unlikely that defendants Paquette-Monthie and Gutwein would be motivated to retaliate against plaintiff for a complaint or grievance in which they were not implicated, particularly when the target of the complaint worked at a separate and geographically distant correctional facility. The sworn declarations establishing that the Clinton and Coxsackie defendants did not know each other or have any contact, utterly refute plaintiff's speculation that they colluded to initiate false disciplinary charges against him. The only support plaintiff offers for the implausible conspiracy theory underlying the retaliation claim against the Coxsackie defendants is the alleged admission of Counselor Paquette-Monthie that she issued the misbehavior report because plaintiff had complained about a friend of hers at Clinton Annex. Given that plaintiff did not offer this self-serving alleged admission while confronting Counselor Paquette-Monthie at the disciplinary hearing, or in his grievance appeals which referenced the Coxsackie defendants, or even in his initial complaint in this action, the court finds that the purported admission does not create an issue of fact that could lead any reasonable fact finder to conclude that defendants Paquette-Monthie and Gutwein conspired to retaliate against plaintiff. See, e.g., Allah v. Greiner, 2006
In any event, the court concludes that plaintiff's retaliation claims against defendants Paquette-Monthie and Gutwein would be subject to dismissal because they would have taken the same actions with respect to the misbehavior report against plaintiff even if they had known of complaints or grievances filed by plaintiff against defendant
During his initial interview with Counselor Paquette-Monthie at Coxsackie, and during the disciplinary hearing, plaintiff acknowledged that he had telephonic contact with his wife from other DOCCS facilities before he was transferred to Coxsackie, at the number listed under his aunt's name on his emergency contact list.
The court finds that, although plaintiff made several frivolous arguments that he should be found not guilty, "he admitted to engaging in the conduct that formed the basis of the misbehavior report." Lowrance v. Achtyl, 20 F.3d at 534-35. Accordingly, I would recommend that summary judgment be granted in favor of the Coxsackie defendants on plaintiff's retaliation claim, based, inter alia, on Mt. Healthy and its progeny.
To begin a due process analysis, the court must determine whether plaintiff had a protected liberty interest in remaining free from the confinement that he challenges, and then determine whether the defendants deprived plaintiff of that libeity interest without due process. Grano v. Selsky, 238 F.3d 223, 225 (2d Cir.2001); Bedoya v. Coughlin, 91 F.3d 349, 351 (2d Cir.1996). In Sandin v. Conner, 515 U.S. 472, 484 (1995), the Supreme Court held that although states may create libeity interests for inmates that are protected by due process, "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."
Violations of state regulations with respect to disciplinary hearings do not, by themselves, necessarily rise to the level of constitutional violations See, e.g., Soto v. Walker; 44 F.3d 169, 173 (2d Cir.1995) (state law violation does not necessarily rise to the level of a constitutional violation); Young v. County of Fulton, 160 F.3d 899, 902 (2d Cir.1998) (violation of state law is not the "benchmark" for determining whether a constitutional violation has occurred). To establish a procedural due process claim in connection with a prison disciplinary hearing, an inmate must show that he was prejudiced by the alleged procedural deficiencies, in the sense that the errors affected the outcome of the hearing. See, e.g., Clark v. Dannheim, 590 F.Supp.2d 426, 429 (W.D.N.Y.2008) (citing, inter alia, Powell v. Coughlin, 953 F.2d 744, 750 (2d Cir.1991) ("it is entirely inappropriate to overturn the outcome of a prison disciplinary proceeding because of a procedural error without making the normal appellate assessment as to whether the error was harmless or prejudicial").
The complaint alleges that, in conducting the disciplinary hearing at Coxsackie and finding plaintiff guilty, defendant Gutwein was motivated by a desire to retaliate against plaintiff for his complaint against defendant
Defendants, apparently conceding that the disciplinary sanctions imposed on plaintiff at Coxsackie implicated a liberty interest, argue that the plaintiff was afforded all of the process to which he was due at the hearing conducted by defendant Gutwein (Defs.' Mem. in Support of Rule 12(b)(6) Mot. at 16-20). The court agrees that, based on the record of the disciplinary hearing, no reasonable fact finder could conclude that plaintiff's due process rights were violated or that the outcome of the proceeding would have been any different if he had been allowed to call and question the witnesses and present the documents that he requested.
The notice required by due process serves to "compel `the charging officer to be [sufficiently] specific as to the misconduct with which the inmate is charged' to inform the inmate of what he is accused of doing so that he can prepare a defense to those charges and not be made to explain away vague charges set out in a misbehavior report." Taylor v. Rodriguez, 238 F.3d 188, 192-93 (2d Cir.2001) (citation omitted)). However, the Constitution does not demand notice that painstakingly details all facts relevant to the date, place, and manner of charged inmate misconduct. Sira v. Morton, 380 F.3d at 72.
Counselor Paquette-Monthie's misbehavior report was based on plaintiff's admissions that he had previously been calking his wife, and the report noted the date in 2009 when plaintiff changed his emergency contact information so he could reach his wife by phone, despite prior orders that he not do so. (Dkt. No. 42-15 at 2). The misbehavior report includes considerable factual detail, and the charges contained therein could certainly not be considered impermissibly vague or conclusory. Taylor v. Rodriguez, 238 F.3d at 193 (due process requires more than a conclusory charge). The fact that the misbehavior report did not specify the institution(s) from which plaintiff impermissibly called his wife did not impede him from establishing that he made no such calls from Coxsackie and pursuing the defense, albeit a frivolous one, that he could not be charged at Coxsackie for conduct committed at prior facilities. (Disc. Hrg. Tr. at 14, 19-20, 26, 35, 44, 46, 53, 56).
During the hearing, plaintiff requested the following witnesses on his behalf; defendant Paquette-Monthie, her supervisor, plaintiff's wife, the District Attorney and the judge who were involved with the Order of Protection, plaintiff's wife's lawyer, plaintiff's criminal defense lawyer, and a staff member from the Office of Mental Health. (Gutwein Decl. ¶ 8; Disc. Hrg. Tr. at 4-8) The hearing officer called only Counselor Paquette-Monthie and Supervising Counselor Chenel to testify, and both were questioned extensively by plaintiff, although defendant Gutwein screened many of plaintiff's questions. (Gutwein Decl. ¶¶ 9-10, Disc. Hrg. at 8-43, 43-61).
The mere fact that plaintiff's questions for witnesses had to be filtered through the hearing officer did not violate due process See Baxter v. Palmigiano, 425 U.S. 308, 322-23 23 & n. 5 (1976) (inmates are not entitled to the right to confront and crossexamine witnesses at a disciplinary hearing). The plaintiff's tone during the entire disciplinary hearing was argumentative, and many of his proposed questions reflected a dogged, but unfocused effort to induce Counselor Paquette-Monthie to admit she was, for whatever reason, biased against the plaintiff During the disciplinary hearing, defendant Paquette-Monthie clearly testified that she initiated the charges against plaintiff because of the perceived seriousness of his misconduct, and "was not playing any dirty politics ... behind the scenes." (Disc. Hrg. Tr. at 26, 28). The hearing officer reasonably denied many of the plaintiff's other questions about the counselor's alleged bias because they were repetitive and bordered on harassment. In any event, it is clear from defendant Paquette-Monthie's declaration (¶¶ 12-17, Dkt. No. 42-12), that if plaintiff had actually tried to ask her at the hearing whether she was retaliating against him at the behest of C.O.
Plaintiff's request to call his wife and a number of people involved in the prior case that resulted in the order of protection, was premised on his claim that these witnesses would put the order in "context" and clarify that plaintiff was, in fact, allowed to speak with his wife by telephone. (Disc. Hrg. Tr. at 6-7, 22, 23, 39, 57-58, 61). Although due process includes a right to call witnesses, this right is not unfettered. Alicea v. Howell, 387 F.Supp.2d 227, 234 (W.D.N.Y.2005) (citing Ponte v. Real, 471 U.S. 491, 495 (1985)). This right may be limited for security reasons, to keep a hearing within reasonable limits, or on the basis of irrelevance or lack of necessity. Id. (citing, inter alia, Kingsley v. Bureau of Prisons, 937 F.2d 26, 30 (2d Cir.1991) (a hearing officer does not violate due process by excluding irrelevant or unnecessary testimony or evidence). An inmate's due process rights are violated when a prison hearing officer refuses to interview witnesses without assigning a reason "logically related to preventing undue hazards to `institutional safety or correctional goals.'" Ponte v. Real, 471 U.S. at 497.
Plaintiff requested that his medical and mental health records be produced at the hearing, claiming they would indicate that his wife was listed as his emergency contact and that, therefore, he had permission from DOCCS staff at Clinton to call his wife.
Plaintiff, while apparently conceding that he used his wife's address and phone number, but not her name, in his emergency contact information (Disc. Hrg. Tr. at 7, Dkt. No. 36 at 35), argued that he disclosed, to Counselor Paquette-Monthie at Coxsackie, that his aunt subsequently moved from that residence and his wife moved in (Disc. Hrg. at 12-13, 37, 56-57, 60). However, plaintiff was charged, not with misleading defendant Paquette-Monthie at Coxsackie, but with misleading staff at other DOCCS facilities by listing his wife's contact information under his aunt's name. (Disc. Hrg. Tr. at 2, Inmate Misbehavior Report, Dkt. No. 48-15 at 2). Plaintiff's position on this point is a variation on his frivolous defense that he could not be charged at Coxsackie for misconduct he previously committed at a prior institution (Disc. Hrg. Tr. at 37). Accordingly, when Hearing Officer Gutwein ruled that documentary or testimonial evidence from DOCCS health units about plaintiff's emergency contact information was not relevant (Disc. Hrg. Tr. at 10, Dkt. No 42-15 at 94-95), he was pursuing a legitimate correctional Goal of avoiding redundant and irrelevant evidence, and did not violate plaintiff's due process rights. See, e.g., Clyde v. Berner, 9:08-CV-909 (JKS), 2010
"An inmate subject to a disciplinary proceeding is entitled to an impartial hearing officer." Allen v. Cuomo, 100 F.3d at 253, 259 (2d Cir.1996). An impartial hearing officer is "one who, inter alia, does not prejudge the evidence and who cannot say ... how he would assess the evidence he has not yet seen." Patterson v. Coughlin, 905 F.2d 564, 569-70 (2d Cir.1990); Francis v. Coughlin, 891 F.2d 43, 46 (2d Cir.1989) ("it would be improper for prison officials to decide the disposition of a case before it was heard").
It is well settled, however, "that prison disciplinary officers are not held to the same standard of neutrality as adjudicators in other contexts." Allen v. Cuomo, 100 F.3d at 259. "The degree of impartiality required of prison officials does not rise to the level of that required of judges generally." Id. An inmate's own subjective belief that the hearing officer was biased is insufficient to create a genuine issue of material fact. Francis v. Coughlin, 891 F.2d 43, 47 (2d Cir.1989); Clyde v. Schoellkopf, 714 F.Supp.2d 432, 437-38 (W.D.N.Y.2010).
The unsupported allegations that defendant Gutwein conspired with the other defendants to retaliate against plaintiff in connection with the disciplinary proceedings at Coxsackie (discussed above) are insufficient to establish that he was a biased hearing officer. See, e.g., Bunting v. Nagy, 452 F.Supp.2d 447, 460-61 (S.D.N.Y.2006) (in order to defeat a motion for summary judgment, a plaintiff-inmate must "be aimed with [something] more than conclusoly allegations of bias and prejudgment" of the disciplinary hearing officer) (quoting Francis v. Coughlin, 891 F.2d at 47). The transcript of the disciplinary hearing demonstrates that Hearing Officer Gutwein displayed great patience in dealing with plaintiff's argumentative demeanor and his persistence in pursuing frivolous lines of witness questioning Given the weight of the evidence supporting plaintiff's guilt and the fact that defendant Gutwein's various rulings regarding witnesses and documentary evidence clearly comported with due process, no reasonable fact finder could conclude that he was an unconstitutionally biased hearing officer.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have fourteen (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court
Filed Jan. 17,
Not Reported in F.Supp.3d, 2014 WL 1292232
Alonzo Greene, plaintiff pro se.
G. Oliver Koppell, Atty. Gen. of the State of New York, New York City (August L. Fietkau, Asst. Atty. Gen., of counsel), for defendants
COTE, District Judge:
Summary judgment may not be granted unless the submissions of the parties taken together "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), Fed.R.Civ.P. In making this judgment, the burden is on the moving party, and all facts must be viewed in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986) Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In addition, because plaintiff is acting pro se, the Court must "read [plaintiff's] supporting papers liberally, and ... interpret them to raise the strongest arguments that they suggest" Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994); accord Soto v. Walker; No. 93-2291, 1995 WL 9496, at *4 (2d Cir Jan. 11, 1995).
When the moving party has provided sufficient evidence to support a motion for summary judgment, however, the opposing party must "set forth specific facts showing that there is a genuine issue for trial," and cannot rest on "mere allegations or denials" of the facts asserted by the movant. Rule 56(e), Fed.R.Civ.P.; accord Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir.1994). The point at which an asserted fact in opposition to a motion for summary judgment has a sufficient basis to constitute evidence rather than a "mere allegation" is, however, less than certain. On one extreme, a party's "bald assertion," completely unsupported by evidence is not sufficient to overcome a motion for summary judgment Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir.1991) (holding that unsupported assertion that person's name on deed was an "accommodation" is not sufficient without more to challenge ownership). In contrast, facts regarding what occurred at a meeting, when alleged in an affidavit of a person who took part in a meeting, are sufficient to overcome a motion for summary judgment if there is some basis to believe that the "version of relevant events is not fanciful." Christian Dior-New York, Inc. v. Koret, Inc., 792 F.2d 34, 37-39 (2d Cir. 1986) Thus, in determining whether to grant summary judgment, this Court must (i) determine whether a factual dispute exists based on evidence in the record, and (ii) must determine, based on the substantive law at issue, whether the fact in dispute is material.
Plaintiff is an inmate at Sing Sing Correctional Facility in New York. The defendants are Thomas Coughlin, III, the former Commissioner of the New York State Department of Corrections ("DOCS"); Donald Selsky, the Deputy Commissioner and Director of the Office of Special Housing and Inmate Disciplinary Programs for DOCS; John P. Keane, the Superintendent of Sing Sing, Jose Pico, a Commissioner's Hearing Officer for DOCS, Alfredo Dezayas, a Sergeant at Sing Sing; Thomas Benjamin, a Corrections Officer at Sing Sing, and R. J. Colon, the Inmate Grievance Program Supervisor at Sing Sing
As an inmate at Sing Sing, plaintiff was at the time of the incident at issue in this case a representative on the Inmate Grievance Resolution Committee ("IGRC"). The IGRC a committee created pursuant to Section 139 of the New York Corrections Law and is organized pursuant to rules set forth in Title 7 of the New York Compilation of Codes Rules and Regulations. See N.Y.Comp.Codes R. & Regs. tit 7, §§ 701.1-.16 (1994). The purpose of this program is to provides inmates with "an orderly, fair, simple and expeditious method of resolving grievances ... including allegations of discriminatory treatment...." Id. § 701.1(a). The IGRC is made up of five persons, including two voting inmates, two voting staff members, and a non-voting chairperson who may be an inmate, staff, or third-party. Id. § 701.4(a) Members of the IGRC investigate and conduct hearings on inmate grievances. Decisions of the IGRC are appealable first to the superintendent of the prison, and second to the Central Office Review Committee ("CORC"), which consists of deputy commissioners. Id. § 701.7 Plaintiff asserts that the misbehavior report discussed below and the penalties imposed as a result of it were imposed in retaliation for plaintiff's actions as a grievance representative. According to plaintiff, defendants Dezayas, Benjamin and possibly Colon were attempting to have the plaintiff removed from his position as a grievance representative due to his persistent efforts to resolve inmate complaints and improve prison conditions.
On May 29, 1992, defendant Benjamin alleges that he was told by inmate Joseph Dougherty that on the previous day Dougherty saw plaintiff and another inmate on the "D gallery" (where Dougherty was housed) and that plaintiff asked Dougherty if he had seen them the previous day distributing flyers.
Benjamin and defendant Dezayas signed this statement as witnesses to Dougheity's signature. As a result of this statement by Dougherty, Benjamin prepared a Misbehavior Report, charging plaintiff with a violation of regulation 102.10 (making threats). See N.Y.Comp.Codes R. & Regs. tit. 7, § 102.10 (1994).
Based on this report, Dezayas placed the plaintiff in keeplock and, on May 31, 1992, Correction Officer Hill served plaintiff with the misbehavior report and an assistance sheet The assistance sheet provides a list of names of persons who are available to help the inmate prepare for the disciplinary hearing. On June 1, 1992, Correction Officer Hamell advised plaintiff that he had been served with the wrong assistance sheet, and provided plaintiff with a new sheet The sheet is apparently updated every two weeks, and the plaintiff had been served with the expired sheet Plaintiff had selected an assistant from the first sheet, but failed to select an assistant from the second sheet
Pursuant to the misbehavior report, a tier III disciplinary hearing was held on June 2 and 9, 1992.
Two major issues arose at the hearing. First, plaintiff was served with a handwritten misbehavior report on May 29, but at the hearing, Pico had two reports, the handwritten version served on the plaintiff and a typewritten version that the plaintiff did not receive. The contents of the two reports were identical except that the handwritten version states "an inmate (identified in attached memo)" while the typed version states "inmate Joseph Dougherty BIBS D-267." Plaintiff objected to the typed report because he never received it Defendant Pico explained to the plaintiff that the typed report would not be treated as a separate charge against the plaintiff, but would be admitted into evidence at the hearing.
The second dispute at the hearing was over whether plaintiff had refused an assistant to help him in preparing his case. As noted above, plaintiff was first provided an expired assistant list from which he attempted to choose an assistant. Correction Officer Harrell subsequently provided plaintiff with a new list. At the hearing Harrell testified that plaintiff refused to choose a person from the new list, and insisted on choosing a person from the old list The plaintiff did not question Harrell on this issue and did not dispute Hairell's testimony
At the conclusion of the hearing, Pico found plaintiff guilty of the charge of making threats and sentenced plaintiff to 60 days of keeplock (12 days already served), loss of packages, commissary and telephone, and precluded plaintiff from holding a position as a representative on the IGRC In imposing this penalty, defendant Pico noted that this was not plaintiff's first violation of regulation 102.10 (making threats).
Plaintiff appealed defendant Pico's ruling to Commissioner Coughlin, and asserted numerous grounds for reversal. These included: (1) Dezayas and Pico are friends and thus the hearing was biased, (2) Dougherty's statement was not corroborated by any other person; (3) plaintiff was not allowed to cross-examine Dougherty, who refused to testify, and Pico refused to interview Dougherty or verify his refusal to testify, (4) plaintiff was denied assistance, (5) the tape was stopped during the testimony and was not restarted and witnesses that plaintiff requested be called were not called, (6) Pico did not take into account evidence that plaintiff had previously been dealt with harshly in disciplinary hearings; (7) there was insufficient evidence to convict the plaintiff, (8) plaintiff was retaliated against for performing his job as a grievance representative, (9) plaintiff had been told by various inmates that the correction officers were out to get the plaintiff, (10) Benjamin first testified by phone, and only testified in person at the request of the plaintiff, (11) the correction officers falsified Dougherty's refusal to testify form On July 31, 1992, acting on behalf of the Commissioner, Selsky affirmed the findings and sentence of defendant Pico.
Plaintiff raised a number of issues in the grievances he filed after the Pico hearing. With regard to plaintiff's removal as an IGRC representative, plaintiff complained that he was not given notice that the hearing could result in his removal as an IGRC representative and Pico did not state a time frame during which the plaintiff would be precluded from holding his position.
The IGRC responded to plaintiff's grievance by recommending that the plaintiff be provided an impeachment hearing prior to being removed as a grievance representative. For the reasons set forth below, however, no hearing was ever held. At the first appeal stage, to Superintendent Keane, Keane found that (i) plaintiff was moved to another housing unit "for the safety and security of the facility" based on the finding that he had threatened another inmate,
As for plaintiff's complaints regarding the cancellation of the election, Superintendent Keane determined that there had been no discrimination against the plaintiff, that new elections would be held soon to fill the vacancies, that the full IGRC had recommended plaintiff's impeachment on June 30, 1992, and that holding an impeachment hearing at this point would be moot because plaintiff's term had expired The CORC affirmed the Superintendent's findings and noted that a person who had originally been precluded from running in the unit 5 election was appointed to the position as IGRC representative after providing documentation of his qualifications.
As relief for the alleged violations, plaintiff seeks a declaration that the defendants have violated plaintiff's constitutional rights, injunctive relief so that plaintiff's record is cleared of the charge that he threatened Dougherty and he is restored to his original status, and monetary relief of $75,000 for compensatory, punitive, direct, special, actual, consequential, substantial, proximate and nominal damages, and $100,000 for irreparable damages.
In opposition to defendants' motion for summary judgment, plaintiff attempted to add numerous other events and defendants to the action By Order dated September 13, 1994, Magistrate Judge Gruber denied plaintiff's request that this be treated as an amendment to the complaint Accordingly, plaintiff's action is based solely on events surrounding from the misbehavior report issued in response to the complaint lodged by inmate Dougherty. Nonetheless, the opposition papers do raise a number of factual disputes that the Court must address in considering this motion.
The bulk of the plaintiff's affidavit and exhibits in opposition are provided to support his claim that the misbehavior report was issued in retaliation for plaintiff's work as a grievance representative. At the time of the incident at issue in this case, the plaintiff asserts that he was responding to grievances from inmates in D gallery regarding the prison administration's refusal to allow D gallery inmates to have "gallery rec." during inclement weather rather than being forced to go outside for recreation Plaintiff asserts that Dougherty was opposed to gallery recreation because as a porter Dougherty would have more work in cleaning the gallery. Plaintiff further asserts that Dougherty, Benjamin, Dezayas and other officers had threatened other inmates in D galley with reprisals if they complained about the recreational restrictions
Plaintiff also sets forth a number of events that he asserts support his claim that defendant Dezayas filed the misbehavior report in retaliation for plaintiff's actions On January 10, 1992, January 20, 1992, and March 3, 1992, plaintiff filed misbehavior reports against defendant Dezayas. Each of these grievances, however, was resolved in favor of defendant Dezayas to the extent that he had any involvement in the incidents at issue. Subsequently, on April 29, 1992, Dezayas was the hearing officer at a tier I hearing brought against the plaintiff at which Dezayas sentenced plaintiff to seven days of hard labor Plaintiff asserts that Dezayas knew at that time that plaintiff was unable to do hard labor due to a back problem Plaintiff further alleges that Dezayas had another corrections officer write a misbehavior report based on plaintiff's failure to appear to perform the hard labor This report was dismissed based on plaintiff's medical restriction form. Finally, as mentioned above, Dezayas along with Benjamin issued a misbehavior report based on the flyers distributed in D gallery.
Assuming the truth of plaintiff's assertions regarding the underlying animosity between Dezayas and Benjamin and the plaintiff, there are eight issues that must be addressed in evaluating the defendants' motion for summary judgment. These are (1) can Benjamin and Dezayas be held liable for writing the misbehavior report based on the threat to Dougherty; (2) can Dezayas be held liable for placing the plaintiff in keeplock in response to the misbehavior report, (3) did Pico violate plaintiff's rights in not interviewing the witnesses who refused to testify, (4) did Pico violate plaintiff's rights in holding the hearing without providing plaintiff with an assistant; (5) did Pico violate plaintiff's rights in precluding him from holding a position as an IGRC representative, (6) did Selsky violate plaintiff's rights in affirming the decision, (7) did Coughlin violate plaintiff's rights in any manner, and (8) did Keane violate plaintiff's rights in not reinstating plaintiff as an IGRC representative or in not taking any other action in response to plaintiff's complaints.
Even if a person has potentially violated an individual's federally protected rights, the government official may be protected from suit by qualified immunity. Qualified immunity acts to shield various government officials from liability under Section 1983" insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) For the violation of the right to give rise to liability, "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right" Anderson v. Creighton, 483 U.S. 635, 640 (1987).
Cook v. Sheldon, 41 F.3d 73, 78 (2d Cir 1994) (quoting Jeffries v. Harleston, 21 F.3d 1238, 1248 (2d Cir), vacated on other grounds and remanded, 115 S.Ct. 502 (1994). In making this determination, only the case law of the Second Circuit and the Supreme Court is relevant. See Richardson v. Selsky, 5 F.3d 616, 623 (2d Cir 1993) ("district court decision does not `clearly establish' the law, even in its own circuit"); Russell v. Scully, 15 F.3d 219, 223 (2d Cir 1993) (looking only to case law of the Supreme Court and Second Circuit).
The Second Circuit has articulated three different scenarios in which a defendant may claim qualified immunity.
Krause v. Bennett, 887 F.2d 362, 368 (2d Cir.1989) (quoting Robinson v. Via, 821 F.2d 913, 920-21 (2d Cir.1987)); accord Velardi v. Walsh, 40 F.3d 569, 573 (2d Cir 1994).
Although counsel for the defendants asserts that defendants Selsky and Pico are entitled to absolute immunity—based on the authority of an unreported 1991 Western District of New York opinion, Pacheco v. Kihl, No. Civ. 90-549T (W.D.N.Y. Dec. 17, 1991)—in each case in which it has addressed the issue the Second Circuit has provided only qualified immunity to prison officials who conduct or review inmate hearings In Young Selsky, 41 F.3d 47 (2d Cir.1994), the Court determined that Selsky, the defendant in this action, is entitled only to qualified immunity In Young, the Second Circuit based its decision to deny Selsky absolute immunity on the lack of procedural safeguards at the hearing, a finding that Selsky has some interaction with the hearing officers, that "Selsky serves at the pleasure of superiors within DOCS," that the hearings and appeals are not truly adversarial in nature, and that the injury caused by an invalid hearing may not be correctable on appeal. Id. at 52-54 Each of these factors is equally present in the case of Pico, who conducted the hearing. Accordingly, defendant Pico is also entitled to qualified immunity, not absolute immunity. Payne v. Axelrod, No. 90-CV-938, 1995 WL 4303, at *3-4 (N.D.N.Y. Jan. 4, 1995) (Kaplan, J., S.D.N.Y., sitting by designation) (holding, based on Young, that hearing officer in Pico's position is entitled to qualified, not absolute immunity).
There are two types of restrictive confinement, administrative and punitive. Administrative confinement is based on a belief by the prison staff that a prisoner is either a threat to other prisoners or that a prisoner is himself in danger Pursuant to Title 7 of the New York Compilation of Codes, Rules & Regulations, Section 251-1.6(a), a prisoner may be confined administratively only if the corrections officer ordering the confinement "has reasonable grounds to believe that an inmate ... represents an immediate threat to the safety, security or order of the facility or [is] in immediate danger to other persons or to property." Such grounds exist when "an officer reasonably believes that a facility rule has been violated." Lowrance, 20 F.3d at 535-36 (quoting Bowe v. Smith, 465 N.Y.S.2d 391, 393 (Sup.Ct.1983)). Punitive confinement, on the other hand, is imposed as a result of some violation of prison regulations. In order to impose punitive confinement, the prison must provide a hearing that complies with various procedural rules. These requirements are discussed below.
Although filing false disciplinary charges could result in a prisoner being subject to restrictive confinement, the act of filing false disciplinary charges does not alone violate a prisoner's constitutional rights. Freeman v. Rideout, 808 F.2d 949, 951, 953 (2d Cir.1986), cert. denied, 485 U.S. 982 (1988). In Freeman, where the plaintiff was not placed in restrictive confinement prior to a hearing on the charges, the Second Circuit held that a hearing that meets the minimum due process requirements would cure any false charges and preclude a suit based solely on the charges themselves.
The holding in Freeman was limited, however, in Franco v. Kelly, 854 F.2d 584 (2d Cir. 1988). In Franco, the Second Circuit determined that, although a valid hearing could preclude a claim based on a false misbehavior report, when a false report is filed in retaliation for a prisoner's exercise of his First Amendment rights the false report constitutes a violation of the prisoner's substantive due process rights, which cannot be cured by a valid hearing Id. at 589, accord Jones v. Coughlin, No. 93-2625, 1995 WL 29700, at *2 (2d Cir. Jan. 23, 1995). Thus, if a corrections officer files a misbehavior report solely in retaliation for a prisoner's exercise of his First Amendment rights, that corrections officer may be subject to a suit under Section 1983 even if the prisoner is afforded a valid hearing. See Mitchell v. Keane, No. 93 Civ. 6024 (LBS), 1994 WL 689076, at *4-6 (S.D.N.Y. Dec. 8, 1994) (dismissing due process claim, but permitting First Amendment claim arising out of filing of false disciplinary charge).
Whether the plaintiff had a constitutionally protected interest in his position as an inmate grievance representative is not clear As noted above, the New York prison regulations set forth a specific procedure for removing an inmate from the IGRC. For this procedure to create a constitutionally protected interest in the position, however, the regulations must meet two criteria. First, the regulation "must employ `language of an unmistakably mandatory character, requiring that certain procedures `shall,' `will,' or `must' be employed.'" Russell v. Coughlin, 910 F.2d 75, 77 (2d Cir.1990) (quoting Hewitt v. Helms, 459 U.S. 460, 471-72 (1983)). Second, the regulation must provide that the act, for example a removal, "will not occur absent specific substantive predicates," such as "the need for control" or "the threat of a serious disturbance." Helms, 459 U.S. at 471-72.
In this case, the provision regarding removal as a grievance representative provides that a hearing "must be held" and that "the notice must indicate" that the charges could lead to removal as an inmate representative The provision governing the removal of grievance representatives does not, however, provide any "specific substantive predicates" for a removal. In the end, however, the Court need not resolve this issue. Even if the Court were to determine today that an inmate has a constitutionally protected right to hold a position as a grievance representative, the defendants would have a right to qualified immunity because the right was not clearly established in 1992. See Severino Negron, 996 F.2d 1439, 1441 (2d Cir.1993) (no need to definitively resolve constitutional issue when defendants would nonetheless be protected by qualified immunity).
In Wolff v. McDonnell, 418 U.S. 539 (1974), the Supreme Court set forth the basic procedural requirements in prison disciplinary hearings According to the Supreme Court, a prisoner must be given twenty-four hours notice of the charges against him, a written statement of the evidence relied on by the fact-finder in the hearing, and the reasons for the disciplinary action taken by the hearing officer Id. at 563-65.
In Superintendent v. Hill, 472 U.S. 445 (1985), the Supreme Court determined that there must be "some evidence" to support the decision of a hearing officer in finding the inmate guilty of the charges levied against him. Id. at 455. This standard does not require that the court reweigh the evidence or review the entire record, but merely requires that the court determine "whether there was any evidence in the record that could support the conclusion reached by the prison disciplinary board." Richardson, 5 F.3d at 622 (quoting Hill, 472 U.S. at 455-56).
Inmates in disciplinary hearings have "no constitutional right of confrontation," Silva v. Casey, 992 F.2d 20, 22 (2d Cir 1993), and a hearing officer may "refuse to call witnesses that may create a risk of reprisal or undermine authority." Wolff 418 U. S. at 566 Among the reasons for refusing to call a witness are "irrelevance, lack of necessity, or the hazards presented in individual cases." Id. In addition, a hearing officer has no power to force a witness to testify. Silva, 992 F. 2d at 21-22. Accordingly, when a witness has refused to testify, the hearing officer need not call the witness merely to allow the defendant to cross-examine the witness. Silva, 992 F. 2d at 22. This limitation on the right to confront witnesses also allows the hearing officer to decline to provide the inmate with the opportunity to confront the victim. See Freeman, 808 F.2d at 953-54; accord Wolff, 418 U. S. at 568-69 (noting risks of allowing the inmate defendant to cross-examine the inmate accuser).
There was, at least in 1992, no clearly established right that required that the hearing officer make an independent determination of the credibility of the informant or the complainant. In 1993, the Second Circuit in Richardson v. Selsky, addressed the issue of whether the hearing officer must make an independent assessment of the credibility of a confidential informant. The court determined that "there must be some evidence in the record of the informant's reliability." 5 F.3d at 624. As the court stated in Richardson, prior to that decision there was no clearly established rule regarding the need to evaluate the credibility of a confidential informant. Moreover, there is no case stating that the hearing officer must make an Independent investigation into the credibility of a complaining inmate who has refused to testify based on a stated fear of threats from the inmate who is the subject of the hearing.
As stated above, the mere act of filing a false misbehavior report does not equal a constitutional violation Moreover, it is not the job of a correction office to determine the veracity of an innate who lodges a complaint. Sher v. Coughlin, 739 F.2d at 82 ("[t]he information reported to the prison officials, whether or not true, fully justified their decision"). In this case, however, plaintiff asserts that defendants Benjamin and Dezayas filed the report solely in retaliation for plaintiff's work as an inmate grievance representative—conduct protected by the First Amendment Plaintiff states in his affidavit:
To support his claim that Dougherty conspired with Benjamin and Dezayas, plaintiff asserts in his affidavit that on March 15, 1992, Dougherty told plaintiff that a misbehavior report filed on the previous day by Benjamin was filed in retaliation for a prior grievance filed by Dougherty, and that Dezayas and other officers "were out to get him" Again, on March 16, plaintiff asserts that Dougherty told plaintiff "that he was afraid for his life and well being due to defendants Dezayas and T. Benjamin'[s] threats and harassments against him."
As a result of the misbehavior report filed by Benjamin, plaintiff was placed in keeplock, thereby depriving him of a liberty interest protected by the Constitution. In such a case, even if the plaintiff were afforded a valid hearing, the hearing does not cure the substantive constitutional violation created by filing a retaliatory misbehavior report.
The only claim against the IGRC Supervisor Colon that survives plaintiff's attempted amendment of the complaint is plaintiff's assertion that Colon recommended that Pico remove plaintiff from his position as an IGRC representative. Plaintiff's complaint and opposition papers are not clear on this issue, but appear to assert that Colon made this recommendation in retaliation against plaintiff for his work as an IGRC representative. Although plaintiff sets forth defendant Colon's indirect role in prior grievances as the IGRC Supervisor, plaintiff provides no evidence to rebut Pico's affidavit that he did not speak to Colon regarding any potential penalty to be imposed In fact, the only action of Colon that is supported by evidence in the record is his testimony in support of plaintiff's claim that the plaintiff had previously requested to be transferred out of Sing Sing. In light of Pico's affidavit and the lack of any evidence in the record to support plaintiff's claim, the action against Colon must be dismissed.
Pico is a civil service employee of DOCS and conducts tier III hearings at various DOCS facilities. Plaintiff's claims against Pico are based on (i) his failure to further investigate the reasons for a number of inmates having refused to testify, (ii) his failure to provide plaintiff with an assistant, (iii) his determination that plaintiff was guilty of threatening Dougherty, and (iv) his removal of plaintiff as an IGRC representative None of Pico's actions regarding these four decisions constitutes a violation of plaintiff's constitutional rights.
Similarly, Pico cannot be held liable for not providing the plaintiff with an assistant In Eng v. Coughlin, the Second Circuit determined that an inmate who is in restrictive confinement has a right to an assistant to aid the individual in the collection of evidence and in interviewing witnesses. 858 F.2d at 897-98. This assistance is, however, limited to what the inmate requests. Silva, 992 F.2d at 22. Implicit in this holding is a determination that the an inmate who declines any assistance cannot be heard to complain later.
Plaintiff also cannot state a claim against Pico based on an assertion that plaintiff did not refuse an assistant, but instead requested an assistant not provided on the list Although not directly addressing the issue in this case, the rule regarding an indigent criminal defendant's right to choose counsel is instructive in considering the scope of an inmate's right to choose an assistant. As a general matter, a criminal defendant does not have an unfettered right to select his counsel See United States v. Locascio, 6 F.3d 924, 931 (2d Cir.1993), cert. denied, 114 S.Ct. 1646 (1994). More specifically, "an indigent defendant has no right to choose the particular counsel appointed to represent [him]" Green v. Abrams, 984 F.2d 41, 47 (2d Cir. 1993) There is no reason to believe that an inmate facing disciplinary charges should have broader rights in choosing an assistant than a criminal defendant has in choosing an attorney. Just as in the criminal appointment system, prison authorities may reasonably value an even distribution of assignments and the convenience of an appointment system that ignores inmate preferences See 2 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure § 11.4(a) (1984). Finally, even if this Court were to determine that the plaintiff had a right to choose an assistant not on the list provided to him, there was no such rule expressed in either the Second Circuit or the Supreme Court in June 1992. Accordingly, Pico is entitled to qualified immunity for his decision to proceed with the hearing based on plaintiff's refusal to select an assistant from the list provided.
Plaintiff asserts that this evidence is insufficient because Pico failed to make an independent determination of Dougherty's credibility. There is, however, no "clearly established right" to have the hearing officer make an independent determination of the credibility of a complaining inmate who refuses to testify As noted above, in Freeman the Second Circuit determined that a hearing officer need not call an inmate victim who has refused to testify based on fear of reprisal. 808 F.2d at 953-54 In Freeman, as in this case, the prison officials determined not to have the inmate victim testify in any manner at the hearing Id. at 950. Although in Richardson v. Selsky, the Second Circuit determined that a hearing officer must make some independent evaluation of the credibility of a confidential informant, 5 F.3d at 624, there is no indication that the Second Circuit intended for this rule to apply to a victim who is not confidential, but is instead known to the accused and who has signed a statement regarding the facts alleged In any event, the rule in Richardson was not articulated until September 1993, over one year after the hearing at issue in this case Accordingly, plaintiff has failed to state a due process claim based on Pico's failure to interview Dougherty in the course of considering the charges.
Finally, plaintiff asserts that Pico removed plaintiff from his position as an IGRC Representative in violation of plaintiff's due process and First Amendment rights.
Even assuming, however, that plaintiff does have a constitutional right to hold this position unless removed pursuant to the procedures set forth above, this right is not "clearly established" In Wolff the Supreme Court required that a prisoner be given notice of the charges against him, a statement of the evidence relied upon in finding the inmate guilty of the infraction, and the reasons for the penalty imposed Id. at 563-64. Neither Wolff nor any Second Circuit opinion has set forth any requirement that the inmate be given notice of the potential penalties to be imposed based on the charges in a misbehavior report. In fact, the regulations governing tier III disciplinary hearings provide that among the penalties that may be imposed is removal of an inmate from the IGRC See N.Y.Comp Codes R. & Regs tit. 7, § 254.7(a)(1)(viii) (1994). Because there was in 1992 no clearly established constitutional right to receive notice of the specific penalties that may be imposed in response to a misbehavior report, Pico's decision to remove plaintiff is protected by qualified immunity
As discussed above, Selsky is protected by qualified immunity for his conduct in reviewing disciplinary hearings. Young, 41 F.3d at 54. Because there was no constitutional violation at the hearing level sufficient to overcome defendant Pico's qualified immunity, there is no basis for finding defendant Selsky liable for his conduct in reviewing plaintiff's appeal.
In order for Commissioner Coughlin to be held liable for any constitutional violations related to plaintiff's disciplinary hearings, Coughlin must have been personally involved in the deprivation. Coughlin, in his supervisory position, can be involved in the deprivation of prisoners' rights in several ways. He may have "directly participated in the infraction," he may have "failed to remedy the wrong" after learning of the violation, he may be liable "because [he] created a policy or custom under which unconstitutional practices occurred, or allowed such a policy or custom to continue," or he could have been "grossly negligent in managing subordinates who caused the unlawful condition or event." Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir.1986) (citations omitted) accord Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994)).
In this case, plaintiff's sole basis for including Coughlin in the suit is that Coughlin had constructive knowledge of the unconstitutional actions surrounding the hearing. Plaintiff's basis for asserting constructive knowledge by Coughlin is that "Plaintiff appealed the denial of the Grievances to the Central Office Review Committee," which affirmed Pico's decision, and that the CORC is "in Albany, where Mr. Coughlin'[s] office was located." Plaintiff does not assert that he wrote a letter directly to Coughlin and plaintiff's lengthy exhibits attached to his opposition papers do not evidence any basis for finding that Coughlin had notice of plaintiff's complaints.
Plaintiff also appears to imply that Coughlin condoned a policy of depriving inmates of their constitutional rights. Plaintiff, however, supplies no support for this contention. The procedural requirements for tier III hearings in New York have previously been determined to comply with the constitutional due process requirements set forth in Wolff. See Walker, 23 F.3d at 655-56. Moreover, when asserting a claim for a violation of civil rights, the claim must "contain some specific allegations of fact indicating a deprivation of rights, instead of a litany of general conclusions that shock but have no meaning." Barr v. Abrams, 810 F.2d 358, 363 (2d Cir.1987). Plaintiff has failed, even though discovery in this action is closed, to put forth any evidence that Coughlin condoned a policy of violating prisoner's civil rights. Accordingly, plaintiff's complaint against Coughlin is dismissed.
There is, however, a second means by which Keane may be held liable. Keane could be held liable for the actions of Benjamin or Dezayas if their conduct constituted a violation of plaintiff's constitutional rights, and Keane "learn [ed] of the violation through a report or appeal," and "failed to remedy the wrong." Williams, 781 F.2d at 323-24. Although plaintiff does not directly state this in his memorandum of law, he does indicate in his affidavit that he appealed to Keane through his June 10, 1992 letter. Although plaintiff alleges in the letter that he had been harassed and that the hearing was a "setup," plaintiff does not allege in this letter the one factual basis on which his complaint may succeed—that Dougherty did not make the complaint to Benjamin or that Dougherty made the complaint at the behest of defendants Benjamin and Dezayas. Because Keane had no notice through the letter that plaintiff suffered from any constitutional violation, plaintiff's complaint against Superintendent Keane is dismissed.
Defendants' motion for summary judgment is granted as to defendants Colon, Pico, Keane and Coughlin. Defendants' motion for summary judgment as to defendants Benjamin and Dezayas is granted as to plaintiff's due process claims, but is denied as to plaintiff's First Amendment claims.
SO ORDERED.
Not Reported in F.Supp., 1995 WL 60020
Randy Jamison, pro se.
Eric T. Schneiderman, Attorney General of the State of New York, Julia H. Lee, Of Counsel, Office of the Attorney General of the State of New York, New York, NY, for Defendant.
MEMORANDUM AND ORDER
RICHARD J. SULLIVAN, District Judge.
On June 24, 2009, Plaintiff was serving a term of incarceration at Green Haven Correctional Facility in Dutchess County when he received a misbehavior report that charged him with assaulting a corrections officer.
On the first day of the hearing, Plaintiff testified (id. ¶ 6) and then requested permission to call witnesses and to review a photograph of the injuries to the officer whom he had allegedly assaulted. (Opp'n Ex. 3.) Defendant indicated he would try to obtain the photograph (id.) and then adjourned the hearing so that Plaintiff could call witnesses (Lee Decl. Ex. C).
The hearing resumed on July 1, 2009, at which time Defendant reported that all of Plaintiff's requested witnesses refused to testify. (Lee Decl. Ex. C.) Plaintiff made several additional inmate-witness requests, and, during the hearing, Defendant directed two corrections officers to inquire whether these individuals would be willing to testify. (Id.) According to the corrections officers, only one inmate, Inmate Wells, was willing to do so. (Id.) Defendant collected Witness Refusal Sheets for all the witnesses who refused to testify. (Lee Decl. Ex. D.)
Inmate Wells and three prison officials then testified about the alleged assault. (56.1 Stmt. ¶ 7.) At the end of the second day of the hearing, Defendant asked if Plaintiff wanted to call any additional witnesses. (Lee Decl. Ex. C.) Although Plaintiff declined, he reiterated that he wished to see a photograph of the injury caused by his alleged assault. (Id.) Defendant then sentenced Plaintiff to eighteen months in the SHU. (Decl. of Mark Tokarz, dated Jan. 14, 2013, Doc. No. 38, ¶ 3.)
Plaintiff subsequently filed an administrative appeal within the state prison system. Pursuant to that appeal, on September 1, 2009, Norman Bezio, Director of the Special Housing and Inmate Disciplinary Program for the New York State Department of Correctional Services, affirmed Defendants findings but reduced Plaintiff's sentence in the SHU to twelve months. (Lee Decl. Ex. F.)
On April 5, 2011, Plaintiff filed the instant Complaint in the United States District Court for the Northern District of New York, alleging constitutional violations of his Eighth and Fourteenth Amendment rights.
Plaintiff alleges three causes of action in the Complaint. First, he alleges that Defendant violated his Fourteenth Amendment due process rights by failing to ensure that Plaintiff's witnesses testified during the disciplinary hearing. (Compl.5.) Next, Plaintiff pleads that the "employee assistance cler [k] failed to interview witnesses prior to the hearing and/or collect documentary evidence to prepare a defense," which the Court construes as a due process claim against Defendant for failing to procure the photograph that Plaintiff requested during the hearing's first day.
Pursuant to Federal Rule of Civil Procedure 56(a), a court may not grant a motion for summary judgment unless "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett, All U.S. 317, 322-23 (1986). The moving party bears the burden of showing that it is entitled to summary judgment. See Anderson v. Liberty Lobby, Inc., All U.S. 242, 256 (1986). A court "is not to weigh evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments." Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 122 (2d Cir.2004) (internal quotation marks omitted). As such, "if there is any evidence in the record from any source from which a reasonable inference in the [nonmoving party's] favor may be drawn, the moving party simply cannot obtain a summary judgment." Binder & Binder PC v. Barnhart, 481 F.3d 141, 148 (2d Cir.2007) (alteration in original) (internal quotation marks omitted).
Testimony Plaintiff claims that his liberty interest was impaired without due process when Defendant failed to ensure that Plaintiff's witnesses testified at his disciplinary hearing and failed to inquire why all but one of these witnesses refused to testify. An inmate has the right to call witnesses at a disciplinary hearing. See N.Y. Comp.Codes R. & Regs. tit. 7, § 254.5(a). However, if a requested witness refuses to testify at a disciplinary hearing, the hearing officer is not constitutionally required to compel the witness to testify. Silva v. Casey, 992 F.2d 20, 22 (2d Cir.1993) (per curiam) ("[l]f a witness will not testify if called, it cannot be a `necessity' to call him. [Therefore,] if a prison official ... reasonably concludes that it would be futile to call a witness to testify, his refusal to do so will not constitute a violation of the prisoner's constitutional rights."); cf. Dixon v. Goord, 224 F.Supp.2d 739, 747 (S.D.N.Y.2002) (citation omitted) (holding that prison officials must make a "meaningful effort" to call witnesses). Furthermore, an inmate has no constitutional claim simply because the hearing officer chooses not to inquire into a witness's reasons for refusing to testify. See e.g., Shell v. Brzezniak, 365 F.Supp.2d 362, 377 (W.D.N.Y.2005) (determining that the hearing officer "was not required to make any further inquiry" about witnesses who opted not to testify); Martinez v. Minogue, No. 9:06-CV-546 (DNH), 2008 WL 4241746, at *5-6 (N.D.N.Y. Sept. 11, 2008) (holding that, although a hearing officer violated state regulations by failing to investigate why two witnesses refused to testify, he did not violate the complaining prisoner's constitutional rights). Here, Defendant attempted to call all of the witnesses that Plaintiff requested by ordering two corrections officers to determine whether these individuals were willing to testify, and he collected Witness Refusal Sheets for those who refused.
Plaintiff also asserts that Defendant violated his due process rights by failing to obtain a photograph of the injuries that Plaintiff allegedly inflicted on a corrections officer. (Opp'n 8.) However, he failed to exhaust this claim when he neglected to raise it during his initial appeal through the prison administrative system.
An inmate may not bring a § 1983 claim regarding any aspect of prison conditions until "such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). For Plaintiff to raise the issue of the photograph now, he has to have exhausted the entire grievance procedure of the prison administrative system. See Porter v. Nussle, 534 U.S. 516, 520 (2002) (holding that the "exhaustion requirement applies to all prisoners seeking redress for prison circumstances or occurrences"); Dixon, 224 F.Supp.2d at 749 (holding that the exhaustion requirement applies as long as a remedy is available through prison administrative proceedings). Here, Plaintiff failed to raise this claim with prison authorities when he launched his internal appeal. In that appeal, Plaintiff contended that Defendant violated due process by failing to call requested witnesses, to assist Plaintiff with his case, or to provide sound support for Plaintiff's sentence, but Plaintiff did not raise Defendant's failure to obtain the photograph as an additional due process violation. (See Decl. of Julia H. Lee, dated April 19, 2013, Doc. No. 42, Ex. A.) Because Plaintiff did not raise this claim through the internal administrative process, it is unexhausted, and Plaintiff cannot raise it now for the first time.
As noted above, Defendant's summary judgment motion wholly ignores Plaintiff's Eighth Amendment claim. Accordingly, summary judgment is not warranted as to that cause of action. Nevertheless, where a plaintiff is proceeding in forma pauperis and his pleadings fail to state a claim, a court has the authority to dismiss a cause of action sua sponte. See 28 U.S.C. § 1915(e)(2)(B)(ii). Here, the Complaint raises an Eighth Amendment claim based on Plaintiff's time in the SHU, where he alleges that he suffered "atypical and significant hardships, torture, loud noise, feces being thrown upon his person" and a corresponding denial of "social stimuli, family day picnics, daily visitation, congregate religious services[,] and meals." (Compl.5.) Although these allegations carry the echo of a claim, they fail to provide a factual basis from which a reasonable fact finder could infer an Eighth Amendment violation by Defendant.
For the foregoing reasons, the Court GRANTS Defendants motion for summary judgment as to Plaintiff's first and second causes of action. With regard to Plaintiff's third cause of action, the Court dismisses that claim sua sponte and without prejudice. IT IS HEREBY ORDERED THAT, by August 23, 2013, Plaintiff shall file an amended complaint with respect to his Eighth Amendment claim only. The amended complaint will completely replace the original complaint, so Plaintiff must include all the facts, and only those facts, that relate to his Eighth Amendment claim. Failure to file an amended complaint may result in the permanent dismissal of Plaintiff's third cause of action and the closing of his case. The Clerk of Court is respectfully directed to terminate the motion located at Doc. No. 34.
SO ORDERED.
Not Reported in F.Supp.2d, 2013 WL 5231457
Timothy Dumpson, plaintiff, pro se.
Dennis C. Vacco, New York State Attorney General, New York State Department of Law, The Capitol, Albany, New York, Howard L. Zwickel, Assistant Attorney General, of Counsel.
POOLER, J.
Plaintiff Timothy Dumpson, an inmate incarcerated in the state of New York, brought this civil rights action alleging violations of his rights to due process of law and freedom from cruel and unusual punishment in connection with a Tier III disciplinary hearing held on March 18, 1994, and the subsequent punishment imposed of one day of keeplock and a seven day restricted diet. The magistrate judge recommended that I dismiss Dumpson's complaint in its entirety and deny his response filed as a cross-motion. Dumpson has filed objections to the report-recommendation.
I review the sections of the magistrate judge's report-recommendation to which Dumpson has filed specific objections de nov. See 28 U.S.C. § 636(b); Fed.R.Civ.P. 72(b). I review the remainder of the report-recommendation for clear error.
Dumpson contends primarily that his due process and Eighth Amendment claims against defendant Seitz should be allowed to go forward because Seitz (1) violated state by failing to interview inmate Green, who refused to testify at Dumpson's disciplinary hearing, to ascertain the reasons for Green's refusal and (2) imposed a seven day restricted diet which Dumpson was unable to eat without becoming ill. Dumpson contends that Seitz's violation of state law rises to the level of a due process violation and that imposition of the restricted diet constitutes cruel and unusual punishment.
I conclude that the magistrate judge correctly held that the hearing officer's failure to investigate the reasons for inmate Green's refusal to testify does not constitute a due process violation. As noted in the report-recommendation, when a hearing officer denies an inmate witness, due process requires only that officials provide some explanation either at the time of the hearing or subsequently in court. Russell v. Selsky, 35 F.3d 55, 58 (2d Cir.1994) (citing Ponte v. Real, 471 U.S. 491, 498-99, 105 S.Ct. 2192, 85 L.Ed.2d 553 (1985)). In this case officials have stated that inmate Green refused to testify. The Hearing Record Sheet signed by defendant Seitz also notes that Green refused to testify. Dkt. No. 15, Ex. A. Finally, a Witness Refusal Form indicating that Green both refused to testify and refused to sign the form is attached and signed by a corrections officer. Id. Yet another corrections officer noted at the bottom of the form that he specifically asked Green to provide a reason for his refusal and Green refused to provide further information. Id. When an inmate refuses to testify, a hearing officer need not call the witness, Silva v. Casey, 992 F.2d 20, 22 (2d Cir.1993), or make an independent investigation into the refusal to testify, Greene v. Coughlin, 1995 WL 60020, *14 (S.D.N.Y.). Consequently, Seitz's failure to investigate Green's refusal to testify does not constitute a due process violation.
However, the magistrate judge has recommended that I dismiss Dumpson's Eighth Amendment claim against Seitz without prejudice in light of recent developments in the Second Circuit with regard to this issue. See Phelps v. Kapnolas, 123 F.3d 91, 1997 WL 469904 (2d Cir.). I agree, and I dismiss Dumpson's Eighth Amendment claim against Seitz only without prejudice.
Dumpson's remaining objections are general in nature. Therefore, finding no clear error, I adopt the magistrate judge's report-recommendation with respect to the remaining issues.
After careful review of all of the papers herein, including the Magistrate Judge's Report—Recommendation, and the objections submitted thereto, it is
ORDERED, that:
1. The Report—Recommendation is hereby approved;
2. The departments' motions are granted and the action dismissed for the reasons set forth in the Magistrate Judge's Report;
3. The plaintiff's cross-motion is denied; and
3. The Clerk shall serve a copy of this Order on the parties by regular mail.
IT IS SO ORDERED.
GUSTAVE J. DI BIANCO, Magistrate J.
This matter was referred to the undersigned for report and recommendation by the Honorable Rosemary S. Pooler, United States District Judge, pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rules N.D.N.Y. 72.3(c).
In the instant civil rights complaint, plaintiff alleges that he was denied due process of law in connection with a Tier III disciplinary hearing held against him, beginning on March 18, 1994, and as a result of which, he received the sanctions of one day of keeplock
Plaintiff seeks injunctive and monetary relief.
Presently before the court is a motion for summary judgment filed on benefit of defendants Selsky, Walker, and Seitz
*3 For the following reasons, the undersigned agrees with the defendants and will recommend dismissal of the amended complaint.
Summary judgment may be granted when the moving party carries its burden of showing the absence of a genuine issue of material fact. Fed.R.Civ.P. 56; Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir.1990) (citations omitted). "Ambiguities or inferences to be drawn from the facts must be viewed in the light most favorable to the party opposing the summary judgment motion." Id. However, when the moving party has met its burden, the nonmoving party must doe more than "simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). At that point, the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial. Id.
After the pleadings are closed, a motion to dismiss for failure to state a claim is properly brought as a motion for judgment on the pleadings pursuant to FED.R.CIV.P. 12(c). Maggette v. Dalsheim, 709 F.2d 800, 801 (2d Cir.1983) (citations omitted). See FED.R.CIV.P. 12(b), 12(c), and 12(h) (2). The motion for judgment on the pleadings is then treated according to the same standard as a motion under Rule 12(b) (6). Id.
A court may not dismiss an action pursuant to Rule 12(b)(6) unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Cohen v. Koenig, 25 F.3d 1168, 1172 (2d Cir.1994) (citing inter alia Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). The court must accept the material facts alleged in the complaint as true. Id. (citing Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 (1964) (per curiam)). In determining whether a complaint states a cause of action, great liberality is afforded to pro see litigants. Platsky v. Central Intelligence Agency, 953 F.2d 26, 28 (2d Cir.1991) (citation omitted).
Plaintiff was given a misbehavior report on March 14, 1994 by Lieutenant Rourke, charging plaintiff with demonstration, creating a disturbance, and refusing a direct order. Defendants' Exhibit A. The misbehavior report involved an incident when Lieutenant Rourke and another officer were attempting to "talk [another inmate] out of his cell." Defendants' Exhibit A at p. 5. Defendants rourke stated in the misbehavior report that plaintiff yelled and continuously interrupted the officers as they were "making headway with the inmate", resulting in the inmate's refusal to leave the cell and the need to use chemical agents to remove the inmate. Rourke stated in the misbehavior report that he told plaintiff three times to be quiet, but plaintiff continued to interrupt. Id.
As a sanction for the violations, defendant Seitz sentenced plaintiff to one day of keeplock, to be served after plaintiff was released from the Special Housing Unit (SHU) in the year 2000. In addition, Seitz imposed a 7 day restricted diet that was to commence almost immediately. The diet disposition was imposed because the plaintiff was confined to SHU (on other sanctions) until the year 2000, and "no other disposition [could] be applied that [would] have an immediate effect." Defendants' Exhibit A at p. 2. This reasoning is set forth in the "Restricted Diet Form", which is a memorandum to the Commissioner of Correctional Services, informing the Commissioner of the imposition of the diet. Id.
Plaintiff appealed the decision to defendant Selsky, who reversed the hearing officer's disposition on May 17, 1994. Defendants' Exhibit C. Selsky also ordered plaintiff's records expunged. Id. at p. 2. The hearing officer's decision was reversed by Selsky because the "[Nearing [o]fficer failed to make the required meaningful effort to obtain the requested witness testimony." There was no "indication that [Seitz] questioned the officer who signed [sic] witness refusal form." Id. at p. 2. Plaintiff was subjected to the restricted diet prior to the reversal, but he never served the keeplock sanction because that sanction was not set to commence until the year 2000.
Plaintiff alleges that he was denied due process in connection with the disciplinary hearing. He alleges that he was denied the right to be present when his witnesses testified. Plaintiff also claims that the hearing officer failed to investigate the refusal of one of plaintiff's witnesses to testify. Plaintiff alleges that he was denied his right to call inmate Cruz as a witness, and denied the right to obtain documentary evidence. Plaintiff states that the hearing officer was not impartial and alleges that defendant Rourke filed a false misbehavior report.
Plaintiff also claims Eighth Amendment violations due to the restricted diet. Plaintiff alleges that he refused to eat for the 7 day period, thus he suffered pain, weight loss, dermatitis, depression, headaches, and nightmares.
As the Second Circuit stated in Bedoya v. Coughlin, 91 F.3d 349, 351-52 (2d Cir.1996), in order to award damages under 42 U.S.C. section 1983 for a procedural due process violation, the court must find that the defendants acted under color of state law and deprived the plaintiff of a liberty or property interest without due process of law. Once the "color of state law" hurdle is past, the remaining inquiry is whether plaintiff had a protected liberty or property interest and whether that interest was deprived without due process. Id. If the court determines that plaintiff was not deprived of any due process right, then the court need not decide whether plaintiff had a protected liberty interest
In the case of prison disciplinary procedures, the Supreme Court has outlined the procedural protections necessary once a liberty interest is found to exist Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) These protections include twenty-four hour notice of the claimed violation, a written statement of the evidence relied upon by the fact finder, and the reasons for the disciplinary action taken. Wolff; 418 U. S. at 563-65.
Additionally, the inmate should be able to call witnesses and present documentary evidence when doing so will not be unduly hazardous to safety or correctional goals. Id. at 566 However, witnesses may be denied for irrelevance or lack of necessity. Russell v. Selsky, 35 F.3d 55, 58 (2d Cir. 1994) (citations omitted). When denying the inmate witnesses, the officials are only required to provide some explanation either at the time of the hearing or subsequently in court. Id. (citing Ponte v. Real, 471 U.S. 491, 498-99, 105 S.Ct. 2192, 85 L.Ed.2d 553 (1985)).
In the instant case, plaintiff alleges that defendant Seitz did not allow some witnesses to testify in the plaintiffs presence. Plaintiff alleges that Seitz did not call inmate Cruz as a witness. However, the hearing record sheet indicates that inmate Cruz testified from Southport Correctional Facility, using a speakerphone. Defendants' Exhibit A at p. 4 The fact that Cruz was not transported to Auburn Correctional Facility to testify does not rise to the level of a constitutional violation. Another inmate also testified by telephone from Southport An inmate has no constitutional right to have his witnesses testify in his presence. Francis v. Coughlin, 891 F.2d 43, 48 (2d Cir. 1989) (quoting Bolden v. Alston, 810 F.2d 353, 358 (2d Cir.), cert. denied, 484 U.S. 896, 108 S.Ct. 229, 98 L.Ed.2d 188 (1987). It has also been held that testimony taken by telephone in the inmate's presence is constitutionally sufficient Greaves v. New York, No. 95 Civ. 9725 WL 278109, p. *3 (S.D.N.Y. May 22, 1997) (citing Sinclair v. Coughlin, 128 A.D.2d 883, 513 N.Y.S.2d 806, 807 (2d Dep't 1987)).
Plaintiff also claims that Seitz did not investigate inmate Green's refusal to testify on plaintiffs behalf Green's Refusal Form is included on page 8 of Defendants' Exhibit A Although Green apparently refused to testify, he also refused to sign the Refusal Form. Id. Defendant Selsky reversed the hearing disposition based upon the hearing offices failure to investigate this refusal The violation of state law alone, however, does not necessarily rise to the level of a constitutional violation. See Soto v. Walker; 44 F.3d 169, 173 (2d Cir. 1995). A hearing officer has no power to force an inmate to testify, and when the inmate refuses, the hearing officer need not call the witness. Silva v. Casey, 992 F.2d 20, 21-22 (2d Cir.1993). It has also been held that a hearing officer need not make an independent evaluation of the basis for the refusal to testify. Greene v. Coughlin, No. 93 Civ. 2805, 1995 WL 60020, p. *14 (S.D.N.Y. February 10, 1995). Thus, the fact that Seitz did not interview the officer who witnessed the refusal does not rise to the level of a constitutional violation.
Plaintiff also claims that the hearing officer was not impartial Plaintiff, however, makes only this conclusory allegation, without any basis whatsoever for the claim The fact that the hearing officer did not decide in the plaintiffs favor does not make him biased in the constitutional sense. Conclusory allegations are insufficient to state a claim under section 1983. Barr v. Abrams, 810 F.2d 358, 363 (2d Cir.1987). Thus, no due process violations occurred at or subsequent to the disciplinary hearing
Defendant Rourke has submitted a motion for judgment on the pleadings. The only claim against defendant Rourke is that the misbehavior report was falsified The court would first point out that in the plaintiffs first response to the defendants' summary judgment motion, he basically agrees with the facts stated by Rourke Defendant Rourke and another officer were attempting to extricate another inmate from his cell. The plaintiff admits that "several prisoners voiced complaints to the defendants about improper treatment and harassment by staff against [the other inmate]." Docket # 19 at p. 3. Plaintiff also admits that as a result of this, chemical agents had to be used against the other inmate to get him out of the cell. Id. at 3-4. Plaintiff may be claiming that he was not one of the inmates involved. However, it appears that the misbehavior report was not false. Whether plaintiff was guilty of the misbehavior was an issue for the disciplinary hearing. In fact, the Second Circuit has held that a false misbehavior report does not rise to the level of a constitutional violation, as long as the inmate has the opportunity at a disciplinary hearing to challenge the report. Freeman v. Rideout, 808 F.2d 949, 953 (2d Cir. 1986), cert. denied, 485 U.S. 982, 108 S.Ct. 1273, 99 L.Ed.2d 484 (1988).
In the instant complaint, plaintiff alleges only that defendant Rourke filed a false misbehavior report Thus, the case may be dismissed as to this defendant
In Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986), the Second Circuit detailed the various ways in which a defendant can be personally involved in a constitutional deprivation A supervisory official is said to have been personally involved if that official directly participated in the infraction. Id. A supervisory official is said to have been personally involved if, after learning of a violation through a report or appeal, he or she failed to remedy the wrong. Id. Personal involvement of a supervisory official is said to exist if he or she created a policy or custom under which unconstitutional practices occurred or allowed such a policy or custom to continue. Id. Finally, a supervisory official may be personally involved if he or she were grossly negligent in managing subordinates who caused the unlawful condition or event. Id.
In the instant case, plaintiff names the superintendent of Auburn Correctional Facility as a defendant However, there is no indication that defendant Walker had any personal involvement with the plaintiffs case. Therefore, summary judgment may be granted in defendant Walker's favor.
Apart from any due process claims regarding the restricted diet, plaintiff seems to allege that the restricted diet violated his Eighth Amendment right to be free from cruel and unusual punishment "The inquiry to be made [in an Eighth Amendment cruel and unusual punishment claim] is whether the prison conditions `deprived inmates of the minimal civilized measure of life's necessities.'" Morgan v. Ward, 699 F.Supp. 1025, 1054 (N.D.N.Y.1988) (quoting Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981)). "Not all deprivations, therefore, give rise to Eighth Amendment concerns, `instead the deprivations that trigger Eighth Amendment scrutiny are deprivations of essential human needs.'" Morgan v. Ward, 699 F.Supp. at 1054 (quoting Inmates of Occoquan v. Barry, 844 F.2d 828, 836 (D.C.Cir. 1988)). The Eighth Amendment is implicated when inmates claim that they are denied essential food, medical care, or sanitation, or when the conditions are such that the threat of violence among inmates is increased Id. (quoting Rhodes v. Chapman, 452 U.S. at 348)
In the instant case, plaintiff alleges that the imposition of the restricted diet constituted cruel and unusual punishment in violation of the Eighth Amendment Plaintiff alleges that because the diet was improperly Imposed, he refused the food and therefore, suffered a variety of ailments including pain, headaches, nightmares, and cramps. It does appear that plaintiff created some of his own problems by refusing food. He does not allege that the restricted diet was in any way nutritionally unsound. The fact that he refused the food does not create an Eighth Amendment violation As stated above, the hearing did not violate plaintiffs due process right The sanction of restricted diet was imposed properly, and based on plaintiff's own admissions, it was not the diet that caused him injury, it was his refusal of the food.
Thus, as the complaint stands, plaintiff cannot claim an Eighth Amendment violation relating to the restricted diet. However, based on the liberality with which pro se complaints are treated, and based upon Phelps, the undersigned will recommend dismissing plaintiff's Eighth Amendment claim without prejudice.
WHEREFORE, based on the above, it is hereby
RECOMMENDED, that defendants' motion for summary judgment (Docket #14) be
RECOMMENDED, that the defendants' motion for summary judgment (Docket # 14) be
RECOMMENDED, that defendant Rourke's motion for judgment on the pleadings (Docket # 20) be
RECOMMENDED, that plaintiffs response, filed as a crossmotion (Docket # 23), be
Pursuant to 28 U.S.C. § 636(b)(1), the parties have ten days within which to file written objections to the foregoing reports Such objections shall be filed with the Clerk of the Court
Not Repotted in F.Supp., 1997 WL 610652
J. PAUL OETKEN, District Judge.
In January 2011, Abdur—Raheem was a prisoner at New York State's Green Haven Correctional Facility ("Green Haven"), and worked as a porter in the Family Reunion Program ("FRP"), where his duties included cleaning the FRP trailers. (Dkt. No. 1 ("Compl."), Ex A ("N.Y.S.Decision").) Defendant Caffery was a Tier III hearing officer at Green Haven (Compl. at 5.) Defendant Prack was the Director of Special Housing/Inmate Disciplinary Program for the New York State Department of Corrections and Community Supervision ("DOCCS"). (Id. Ex B.)
On January 27, 2011, Abdur—Raheem cleaned the trailer where one of his own FRP visits was to be held and brought a few personal items into the trailer (Compl at 5; N.Y.S. Decision.) Soon thereafter, a corrections officer who worked in the FRP office noticed that two cartridges of film were missing from the office, and, after a search, discovered one cartridge hidden between the mattresses of the bed in the trailer in which Abdur—Raheem was to have his FRP visit (N.Y.S.Decision.) Abdur—Raheem was immediately placed in the Special Housing Unit, or "SHU." (Compl. at 5.)
Abdur—Raheem was charged in a prison misbehavior report with smuggling, stealing, and violating FRP guidelines. (N.Y.S.Decision.) On February 14, 2011, he was found guilty of the charges following a Tier III disciplinary hearing before Defendant Caffery. (Id.; Compl. at 5; Compl Ex. B.) Caffery sentenced Abdur—Raheem to six months in the S.H.U. The punishment included loss of packages, commissary, and phone privileges for the full six-month period. (Compl. at 5.) It appears from the complaint that Abdur—Raheem may have been released early on April 4, 2011. (Id.) In any event, Caffery's determination was affirmed on administrative appeal. (N.Y.S.Decision.)
Abdur-Raheem subsequently initiated a proceeding in New York state court pursuant to CPLR Article 78, contending that his right to call witnesses had been infringed at the Tier III hearing when Caffery failed to make a personal inquiry concerning the reason Abdur—Raheem's witness refused to testify. (N.Y.S.Decision) The witness, a fellow inmate, was the other porter in the FRP program who had access to the FRP trailers (Id.) He had initially agreed to testify, but later refused (Id.) At the hearing, Caffery informed Abdur-Raheem of the inmate's refusal to testify and indicated that two officers had spoken to the inmate about his refusal. (Id.) In addition, Caffery gave Abdur—Raheem a copy of the inmate refusal form, which indicated that the requested witness did not "have knowledge of any photos" and "did not want to be involve[d]." (Id.)
On September 20, 2012, Prack sent a letter to Abdur-Raheem advising him "on behalf of the Commissioner" that his prison disciplinary determination had been "reviewed and administratively reversed," and that rehearing was "not warranted" (Compl.Ex.B.)
Abdur-Raheem sues Caffery and Prack in their official and individual capacities under 42 U.S.C. § 1983. He alleges that Caffery violated his Fourth, Eighth, and Fourteenth Amendment rights when he failed to personally inquire as to why the witness refused to testify, and that Prack "unconstitutionally left [him] confined to S.H.U. from Jan[uary] 27, 2011, until April 4, 2011." (Compl. at 5.) He seeks damages of $150 for each day in SHU, $.32 per hour for the wages he lost as a result of being held in SHU, and punitive damages of $2,500 (Id. at 5-6.)
The complaint was filed on July 8, 2013. (Dkt. No. 1.) On September 24, 2013, the Court sua sponte dismissed Abdur-Raheem's official-capacity claims against the Defendants on the ground that, as state agents, Caffery and Prack have Eleventh Amendment immunity from suit for damages in their official capacities.
In determining whether a plaintiff has pleaded facts sufficient to survive a motion to dismiss, a court will not consider mere conclusory allegations that lack a factual basis. Hayden v. Paterson, 594 F.3d 150, 160-61 (2d Cir.2010). A plaintiffs complaint "must at a minimum assert nonconclusoly factual matter sufficient to nudge its claims across the line from conceivable to plausible to proceed." EEOC v. Port Auth. of N.Y. & N.J., 768 F.3d 247, 254 (2d Cir.2014) (quoting Iqbal, 556 U.S. at 680) (alterations and internal quotation marks omitted).
In assessing the sufficiency of the complaint, a court may consider "any written instrument attached to it as an exhibit, materials incorporated in it by reference, and documents that, although not incorporated by reference, are integral to the complaint" Sira v. Morton, 380 F.3d 57, 67 (2d Cir.2004) (citations and internal quotation marks omitted). "Integral" documents are those "either in plaintiffs' possession or of which plaintiffs had knowledge and relied on in bringing suit." Chambers v. Time Warner; Inc., 282 F.3d 147, 153 (2d Cir. 2002) (quoting Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir.1993)) In order for a document to be "integral," however, a plaintiff must actually have relied on its terms and effect in drafting the complaint, mere possession or notice is not enough Id.
Finally, Abdur—Raheem's pro se complaint is subject to more lenient standards than a complaint filed by a represented party "A document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks omitted), see also Fed. Rule Civ. P. 8(e) ("Pleadings must be construed so as to do justice.").
To prevail on a claim under 42 U.S.C. § 1983, a plaintiff must "`show that [an] official, acting under color of state law, caused the deprivation of a federal right.'" Coon v. Town of Springfield, Vt., 404 F.3d 683, 686 (2d Cir. 2005) (quoting Graham, 473 U.S. at 166 (1985)). There is no dispute here that Caffery and Prack, employees of the DOCCS, were acting under color of state law. The parties dispute the second element, that is, whether Abdur—Raheem has stated a plausible claim that Caffery or Prack deprived him of a right guaranteed by the United States Constitution Abdur—Raheem alleges violations of his Fourth, Eighth, and Fourteenth Amendment rights.
Abdur-Raheem alleges that his Eighth Amendment rights were violated when he was placed in the SHU (Id.) "In order to establish a violation of his Eighth Amendment rights, an inmate must show (1) a deprivation that is `objectively, sufficiently serious' that he was denied `the minimal civilized measure of life's necessities,' and (2) a `sufficiently culpable state of mind' on the part of the defendant official, such as deliberate indifference to inmate health or safety" Gaston v. Coughlin, 249 F.3d 156, 164 (2d Cir. 2001) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). A prison official has a culpable state of mind if he "participated directly in the alleged event, ... learned of the inmate's complaint and failed to remedy it, ... created or permitted a policy that harmed the inmate, or acted with gross negligence in managing subordinates." Id.
Abdur-Raheem has not plausibly pleaded either of these elements. As to his detention in the SHU, he states only that he lost his privileges with respect to receiving packages, the commissary, and phone calls Even assuming that Abdur-Raheem's SHU confinement lasted for the full six-month period, these allegations are not sufficient to give rise to an Eighth Amendment violation. See, e.g., Dixon v. Goord, 224 F.Supp.2d 739, 748-49 (S.D.N.Y.2002) (holding that "allegations of having been cut off from the prison population, a computer program, religious services, legal research, medical showers and personal property, as well as limits on food access, and other normal incidents of SHU confinement," which lasted ten months, were "not violations of the Eighth Amendment"). And he makes no allegation as to Caffery's culpable state of mind in sentencing him to six months in the SHU. Accordingly, Abdur—Raheem's Eighth Amendment claim is dismissed.
Abdur—Raheem's Fourteenth Amendment claim against Caffery is a procedural due process claim To state such a claim, Abdur—Raheem must allege that he has a protected liberty interest and that he was deprived of sufficient process to protect that interest See Sandin v. Conner; 515 U.S. 472, 484 (1995). Abdur—Raheem argues that Caffery deprived him of due process when he sentenced him to the SHU without inquiring into the requested witness's reason for refusing to testify at the Tier III hearing. (Compl. at 5.)
Liberty or Property Interest: A prisoner's liberty interest is implicated by SHU confinement only if the confinement "imposes [an] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id. Factors relevant to determining whether the plaintiff endured an "atypical and significant hardship" include "the extent to which the conditions of the disciplinary segregation differ from other routine prison conditions" and "the duration of the disciplinary segregation imposed compared to discretionary confinement." Wright v. Coughlin, 132 F.3d 133, 136 (2d Cir. 1998).
It is unclear from the complaint whether Abdur—Raheem spent 67 days or six months (180 days) in the SHU Either way, he spent more than 30 days in the SHU, and therefore development of a detailed record of the SHU conditions he was subject to is advisable before the Court will dismiss this claim for failure to plead a protected liberty interest The factual record before the Court is far from detailed, Abdur-Raheem states only that the SHU sanction "included loss of packages, commissary, [and] phone privileges." (Compl. at 5) The Court will therefore not dismiss Abdur—Raheem's procedural due process claim on this ground. Rather, the Court assumes without deciding that Abdur—Raheem's SHU confinement implicates a protected liberty interest, and asks whether he was given sufficient process.
Process: "A prisoner may not properly be deprived of a cognizable liberty interest without due process of law." Gaston, 249 F.3d at 163. Due process requires that a prisoner be provided, at minimum, with "advance written warning of the charges against him, the opportunity to call witnesses, and a written final decision on the hearing describing how the state reached its determination." Odom v. Kerns, No. 99 Civ 10668(KMK)(MHD), 2008 WL 2463890, at *9 (S.D.N.Y. June 18, 2008) (citing Wolff v. McDonnell, 418 U.S. 539, 563-67 (1974)); see also Ponte v. Real, 471 U.S. 491, 495 (1985) ("Chief among the due process minima outlined in Wolff was the right of an inmate to call and present witnesses and documentary evidence in his defense before the disciplinary board."). Abdur—Raheem challenges only the second of these requirements, he alleges that his right to call witnesses was infringed when Caffery failed to make a personal inquiry into Abdur—Raheem's witness's refusal to testify (Compl. at 5.)
"Clearly, if a witness will not testify if called, it cannot be a `necessity' to call him [Therefore,] if a prison official ... reasonably concludes that it would be futile to call a witness to testify, his refusal to do so will not constitute a violation of the prisoner's constitutional rights" Silva v. Casey, 992 F.2d 20, 22 (2d Cir. 1993). Courts in this and neighboring districts have consistently held that a prison hearing officer's failure to call a fellow inmate who refuses to testify does not violate due process. See Odom, 2008 WL 2463890, at *10 ("A witness's refusal to testify is a rational reason for denying Plaintiffs request to call witnesses"), Jamison v. Fischer; No. 11 Civ. 4697(RJS), 2013 WL 5231457, at *3 n. 4 (S.D.N.Y. July 11, 2013) (holding that a hearing officer could have reasonably concluded that it would be futile to call witnesses where those witnesses submitted witness refusal sheets, and that therefore the fact that these witnesses were not made to testify did not deprive the plaintiff of due process); Turner v. Grant, No. 98 Civ. 706A, 2000 WL 362032, at *5 (W.D.N.Y. Mar 29, 2000) (holding that a hearing officer did not violate the plaintiffs due process rights in failing to call a witness who refused to testify); Merced v. Moylan, No 9.05 Civ. 1426 (FJS/RFT), 2007 WL 3171800, at *9 (N.D.N.Y. Oct 29, 2007) ("A failure to summon the testimony of a witness who has refused to testify, in the absence of evidence that the refusal was linked to intimidation on the part of prison officials, does not violate due process because calling a witness who refuses to speak upon questioning would be futile.").
Moreover, "[t]here is no indication in Second Circuit or Supreme Court case law that a hearing officer must make an independent evaluation of the basis for the refusal to testify" Greene v. Coughlin, No. 93 Civ. 2805(DLC), 1995 WL 60020, at *14 (S.D.N.Y. Feb. 10, 1995) (holding that a Tier III hearing officer does not violate a prisoner's due process rights when he fails to investigate the reasons for an inmate refusing to testify), Jamison, 2013 WL 5231457, at. *3 (same), Dumpson v. Rourke, No 96 Civ. 621(RSP), 1997 WL 610652, at *1 (N.D.N.Y. Sept. 28, 2006) (same). While failure to make such an independent evaluation violates state regulations, it does not violate the complaining prisoner's federal constitutional rights. See Martinez v. Minogue, No. 9:06 Civ. 546, 2008 WL 4241746, at *5-6 (N.D.N.Y. Sept. 11, 2008).
Under this precedent, Caffery did not violate Abdur-Raheem's due process rights when he proceeded without the testimony of Abdur-Raheem's proposed witness. That witness had indicated, by way of an inmate refusal form, that he would not testify. Further, while Caffery may have had an obligation under New York law to further investigate the inmate's refusal to testify, he did not have an obligation under the Due Process Clause to do so. Rather, he was constitutionally required only to explain to Abdur-Raheem why the witness was not called. Caffery fulfilled this obligation when he gave Abdur-Raheem a copy of the inmate refusal form at the Tier III hearing, which indicated that the inmate had refused to testify because he did not have knowledge of the event and did not want to be involved. Accordingly, Abdur-Raheem's Fourteenth Amendment procedural due process claim against Caffery is dismissed
The complaint also names Prack, who was the Director of the DOCCS Special Housing/Inmate Disciplinary Program when Abdur-Raheem was confined in the SHU. (Compl. at 5, id. Ex B.) The complaint alleges only that Prack left Abdur-Raheem "unconstitutionally ... confined to S.H.U. from Jan[uary] 27, 2011, until April 4, 2011." (Id. at 5.)
For the foregoing reasons, Defendants' motion to dismiss the complaint is GRANTED The Clerk of Court is directed to close the motion at docket number 18 and to close the case.
SO ORDERED.
Not Reported in F.Supp.3d, 2015 WL 667528
Shawn Martinez, Orlando, FL, pro se.
Hon. Andrew M. Cuomo, Attorney General of the State of New York, David Fruchter, Esq., Assistant Attorney General, of Counsel, Albany, NY, for Defendants.
DAVID N. HURD, District Judge.
Based upon a careful review of the entire file and the recommendations of Magistrate Judge Treece, the Report-Recommendation is accepted and adopted in all respects. See 28 U.S.C. 636(b)(1).
Accordingly, it is
ORDERED that
IT IS SO ORDERED.
DAVID E. PEEBLES, United States Magistrate Judge.
Plaintiff Shawn Martinez, a New York State prison inmate who is proceeding pro se and in forma pauperis, has commenced this action pursuant to 42 U.S.C. § 1983, complaining of constitutional violations alleged to have occurred during the time of his confinement. In his complaint the plaintiff, who following a due process hearing was found guilty of assaulting a fellow inmate and was sentenced, inter alia, to three years of disciplinary confinement in a prison special housing unit ("SHU"), alleges deprivation of his right to procedural due process stemming from the refusal of the presiding hearing officer to call two witnesses requested by Martinez, but who had informed plaintiffs legal assistant of their refusal to testify at the hearing. As relief plaintiff seeks compensatory damages computed based upon the amount of time served in SHU confinement up until the reversal of the hearing officer's determination, following his initiation of a state court proceeding challenging the ruling.
Currently pending before the court is a motion by the two named defendants for summary judgment dismissing plaintiffs complaint in its entirety. In their motion, defendants assert that while plaintiffs rights under state law or regulation may have been violated, as indeed was the finding of the state court which overturned the hearing determination, no constitutional deprivation occurred when the hearing officer, reasonably believing that the two witnesses at issue had refused to testify on the plaintiffs behalf, failed to require their appearance for that purpose.
There being no dispute that the evidence adduced during the hearing was adequate to support the finding of plaintiffs guilt, and discerning no constitutional violation based upon the hearing officer's decision not to call the two recalcitrant witnesses, I recommend that defendants' motion be granted.
Plaintiff is a prison inmate entrusted to the custody of the New York State Department of Correctional Services ("DOCS"). See generally Complaint (Dkt. No. 1). At the times relevant to the claim in this action, Martinez was designated to the Clinton Correctional Facility ("Clinton"), located in Dannemora, New York Id.
A Tier III disciplinary hearing was held, beginning on March 10, 2003, to address the allegations set forth in the misbehavior report, presiding at that hearing was defendant R.J Minogue, a Corrections Captain at the facility.
At the conclusion of the hearing plaintiff was convicted on all four counts Fruchter Decl. (Dkt. No. 31-3) Exh. C. As a result of that finding defendant Minogue imposed a penalty which included thirty-six months of disciplinary confinement in the facility's SHU, with a corresponding loss of package, commissary, and telephone privileges, and a further recommendation that plaintiff lose thirty-six months of good time credits. Id., Exh. D at 25-26. The hearing officer's finding of guilt and the penalties imposed were upheld on administrative appeal to defendant Donald Selsky, who at that time served as the DOCS Director of Special Housing/Inmate Disciplinary Program, in a determination issued on May 5, 2003. Fruchter Decl. (Dkt. No. 31-3) Exh. H.
Following his unsuccessful administrative challenge, plaintiff commenced a proceeding in New York State Supreme Court, pursuant to Article 78 of the New York Civil Practice Law and Rules, challenging the disciplinary determination Complaint (Dkt. No. 1) ¶ 4. While Martinez's Article 78 petition was initially dismissed by the trial court on February 5, 2004, that determination was reversed on appeal to the New York State Supreme Court Appellate Division, Third Department, by memorandum-decision and order issued on February 10, 2005. Id. ¶¶ 3-4, Exh. A In its decision reversing the lower court's holding and vacating the disciplinary determination, the Third Department concluded that the hearing officer had failed to comply with governing state regulations regarding the refusal of witnesses to testify at such hearings, based upon his failure to inquire as to the basis for the refusal of the two witnesses to testify and to then provide the plaintiff with an adequate explanation regarding that failure. Id. The hearing determination was therefore reversed, and the matter was remanded to the DOCS for a new hearing at which defendants were directed to provide plaintiff with the reason for the refusal of the two witnesses to testify. Id. Of note, in its decision the Third Department observed that "petitioner does not dispute that the evidence in the record was sufficient to sustain the [hearing officers] determination[.] . . . ." Id.
Plaintiff commenced this action on May 3, 2006. Dkt. No. 1. In his complaint Martinez names Captain Minogue, the hearing officer, and Donald Selsky, who denied his internal administrative appeal, as defendants and asserts a single claim of procedural due process deprivation based upon the hearing officer's failure to call the two requested witnesses or to provide him with an adequate explanation regarding their refusal to testify.
On January 31, 2008 defendants moved seeking the entry of summary judgment dismissing plaintiffs complaint Dkt. No. 31. In their motion defendants assert that at best, plaintiffs claim implicates a violation of state regulation which does not rise to a level of constitutional significance, particularly inview of the Third Department's finding of the existence of sufficient evidence to support the hearing offices substantive determination. Id. Plaintiff has since responded in opposition to defendants' motion, Dkt. No. 33, which is now ripe for determination and has been referred to me for the issuance of a report and recommendation pursuant to 28 U.S.C. § 636(b) (1)(B) and Northern District of New York Local Rule 72.3(c). See also FED. R. CIV. P. 72(b).
Defendants' motion is governed by Rule 56 of the Federal Rules of Civil Procedure. Under that provision, summary judgment is warranted when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c), see Celotex Cop. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986), Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10 (1986); Security Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 82-83 (2d Cir.2004). A fact is "material," for purposes of this inquiry, if it "might affect the outcome of the suit under the governing law" Anderson, 477 U.S. at 248, 106 S.Ct. at 2510, see also Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005) (citing Anderson). A material fact is genuinely in dispute "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party" Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. Although pro se plaintiffs are entitled to special latitude when defending against summary judgment motions, they must establish more than mere "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Cop., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356 (1986); but see Vital v. Interfaith Med. Ctr., 168 F.3d 615, 620-21 (2d Cir. 1999) (noting obligation of court to consider whether pro se plaintiff understood nature of summary judgment process).
When deciding a summary judgment motion, a court must resolve any ambiguities, and draw all inferences from the facts, in a light most favorable to the nonmoving party. Jeffreys, 426 F.3d at 553, Wright v. Coughlin, 132 F.3d 133, 137-38 (2d Cir. 1998). The entry of summary judgment is inappropriate where "review of the record reveals sufficient evidence for a rational trier of fact to find in the [nonmovant's] favor." Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002) (citation omitted); see also Anderson, 477 U.S. at 250, 106 S.Ct. at 2511 (summary judgment is appropriate only when "there can be but one reasonable conclusion as to the verdict").
Plaintiffs complaint alleges that during the course of the disciplinary proceedings against him he was denied procedural due process, in violation of rights secured under the Fourteenth Amendment Defendants assert that plaintiffs claim, while potentially implicating a violation of state regulation, as the Third Department found, does not similarly support the finding of a procedural due process deprivation.
The procedural safeguards to which a prison inmate is entitled before being deprived of a constitutionally cognizable liberty interest are well-established, the contours of the protections guaranteed under the Fourteenth Amendment were the focus of the Supreme Court's decision in Wolff v. McDonnell, 418 U.S. 539, 564-67, 94 S.Ct. 2963, 2978-80 (1974). In its decision in that case the Court held that once its protections are triggered in connection with an inmate disciplinary proceeding, the Fourteenth Amendment affords certain minimal safeguards, requiring 1) written notice of the charges; 2) the opportunity to appear at a disciplinary hearing and present witnesses and evidence, subject to legitimate safety and penological concerns, 3) a written statement by the hearing officer explaining his or her decision and the reasons for the action being taken, and 4) in some circumstances, the right to assistance in preparing a defense. Wolff 418 U.S. at 564-67, 94 S.Ct. at 2978-80, see also Eng v. Coughlin, 858 F.2d 889, 897-98 (2d Cir.1988). In addition to these procedural safeguards, the Fourteenth Amendment also requires that a hearing offices disciplinary determination must gamer the support of at least "some evidence". Superintendent v. Hill, 472 U.S. 445, 454, 105 S.Ct. 2768, 2773 (1985).
Plaintiff's quarrel in this case is with the hearing officer's failure to call two witnesses whose presence he requested, including the victim of the assault and another inmate at the prison. While the Fourteenth Amendment guarantees an inmate's rights to call witnesses and present evidence in his or her defense before being deprived of a cognizable liberty interest, that right is not without bounds; the law requires only that an inmate be permitted to present witness testimony only where "permitting him [or her] to do so will not be unduly hazardous to institutional safety or correctional goals." Hill v. Selsky, 487 F.Supp.2d 340, 342 (W.D.N.Y. 2007) (citing Wolff 418 U.S. at 566, 94 S.Ct. at 2979) In this instance defendant Minogue, in his capacity as a hearing officer, was informed by plaintiff's legal assistant that two requested witnesses, including M. Mitchell and D. Padgett, had refused to testify at plaintiff's hearing. Fruchter Decl. (Dkt. No. 31-3) Exh. B. During the hearing, Minogue advised the plaintiff of his decision not to call those two individuals as witnesses, in light of their refusals to testify for the plaintiff Id. Exh. D at 2, 5. Where a hearing officer reasonably believes that a witness identified and requested by an accused inmate has refused to testify as requested by an accused inmate, he or she may permissibly opt not to call that witness, concluding that to do so is unnecessary in light of that refusal. Hill, 487 F. Supp. 2d at 342-43, see also Sweet v. Wende Corr. Facility, 514 F.Supp.2d 411, 414 (W.D.N.Y.2007), Shell v. Brzezmak, 365 F.Supp.2d 362, 377 (W.D.N.Y.2005).
In bringing this action and resisting defendants' motion for summary judgment, plaintiff appears to take solace in the Third Department's decision reversing the adverse disciplinary determination against him That court's decision, however, was predicated entirely upon the hearing officer's failure to comply with a regulation which provides, in pertinent part, that an
7 NYCRR § 254.5(a) (emphasis supplied). It is well-established, however, that a violation of state law or regulation in and of itself will not establish a constitutional violation or support a civil rights claim under 42 U.S.C. § 1983. See Johnson v. Columbia Univ., No. 99 Civ. 3415, 2003 WL 22743675, at *14 (S.D.N.Y Nov. 19, 2003) (citing Paul v. Davis, 424 U.S. 693, 700, 96 S.Ct. 1155, 1160 (1976)); see also Hill, 487 F.Supp.2d at 343 (state court decision concluding that the hearing officer violated state regulation by not providing the accused inmate with a signed witness refusal form did not establish a constitutional deprivation).
Because plaintiff's complaint alleges only a violation of state regulation related to the hearing officer's failure to conduct a proper inquiry into the refusal of two witnesses requested by the plaintiff and to provide both an adequate reason and a signed witness refusal form to the plaintiff, and those violations do not rise to a level of constitutional significance, I recommend that defendants' motion be granted and plaintiff's complaint in this action dismissed. Hill, 487 F.Supp.2d at 343 ("Having been told that the inmates were refusing to testify, [the hearing officer] could reasonably have concluded that it would have been futile to call them, and his failure to do so or to go to their cells and interview them themself did not give rise to a constitutional violation, regardless of whether [the hearing officer and plaintiff inmate] had been given signed refusal forms from those inmates.") (citation omitted).
Plaintiffs disciplinary conviction, following a hearing, of multiple rule violations based upon his participation in an assault by several inmates upon a fellow prisoner is adequately supported by some evidence, including the testimony received during the hearing While that adverse determination was ultimately vacated based upon a state court finding that the hearing officer had refused to satisfy the requirements of a state regulation regarding refusals of witnesses to testify during such proceedings, the record reflects that upon being informed of their refusal to testify the hearing officer reasonably concluded that it was unnecessary to call the two witnesses requested by the plaintiff Under these circumstances, no reasonable factfinder could conclude that a constitutional deprivation occurred, and defendants are therefore entitled to judgment as a matter of law dismissing plaintiff's complaint.
Accordingly, it is hereby
RECOMMENDED that defendants' motion for summary judgment (Dkt. No. 31) be GRANTED, and plaintiffs complaint in this action DISMISSED in all respects.
It is hereby ORDERED that the clerk of the court serve a copy of this Report and Recommendation upon the parties in accordance with this court's local rules.
Not Reported in F.Supp.2d, 2008 WL 4241746
Escon Caimite, 01-A-2313, Greene Correctional Facility, P.O. Box 975, Coxsackie, New York 12051, Plaintiff pro se
Attorney General for the State of New York The Capitol, Albany, New York 12224, Attorney for defendants, OF COUNSEL: MATTHEW P. REED, ESQ., Assistant Attorney General
Christian F. Hummel, U.S. Magistrate Judge
The facts are reviewed in the light most favorable to plaintiff as the non-moving pasty
On November 13, 2015, non-party Corrections Officer ("C.O.") Doan issued plaintiff a misbehavior report charging him with assault on an inmate (100.10), violent conduct (104.11), fighting (100.13) and refusing a direct order (106.10). Compl. ¶ 15, Dkt. No. 19-1 ("Def. Mem of Law") at 3. In the misbehavior report, C.O. Doan stated that he had observed plaintiff making a stabbing motion at inmate Nesmith, throw a weapon onto the ground, and instigate a fist fight.
On November 19, 2015, Hearing Officer ("H.O.") Corbett commenced a Tier III disciplinary hearing concerning plaintiff's two misbehavior reports. Compl. ¶ 18; Def. Mem. at 4. Plaintiff requested inmate Nesmith as a witness, but his hearing assistant informed him that inmate Nesmith refused to testify. Compl. ¶ 19; Del. Mem. of Law at 4. At the start of the hearing, plaintiff informed H.O. Corbett that he never received a witness refusal form, and that he was not told the reason inmate Nesmith refused to testify.
On January 7, 2016, non-party C.O. Gebo issued plaintiff a misbehavior report charging him with possession of contraband (113.23), possession of marijuana (113.25), and smuggling (114.10). Compl. ¶¶ 27, 30; Def. Mem of Law at 5. In the misbehavior report, C.O. Gebo alleged that an x-ray of plaintiff's rectum showed an unidentified foreign object, that was later revealed to be 0.8 grams of marijuana. Compl. ¶¶ 28, 29; Def. Mem. of Law at 5. Soon after, plaintiff transferred to Southport Correctional Facility ("Southpoit"). Compl. ¶ 30; Def. Mem. of Law at 5. On January 28, 2016, H.O. Esgrow commenced a Tier III disciplinary hearing concerning the January 7, 2016 incident at Great Meadows. Compl. ¶ 31; Def. Mem. of Law at 5. At the hearing, plaintiff objected to the "unlawful strip frisk" that proceeded the finding of the unidentified foreign object, as he believed probable cause was never corroborated by reviewing the hospital log book, the SHU log book, or by Physicians Assistant ("P A.") Nesmith.
Form 2176, Witness Interview Notice, states that six witnesses were called at the February 25, 2016 disciplinary hearing Def. Mem of Law at 5.
Under Rule 12(b)(6), a defendant may move to dismiss a complaint for a plaintiff's "failure to state a claim upon which relief can be granted." FED. R. CIV. P. 12(b)(6). When considering such a motion, a court must "construe plaintiff['s] complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in plamtiff['s] favor."
Accordingly, to survive a motion to dismiss, a complaint must state a claim for relief that is "`plausible on its face.'"
Where, as here, a party seeks judgment against a
The Due Process Clause of the Fourteenth Amendment states. "[n]o State shall . . . deprive any person of life, liberty, or property without due process of law." U.S. CONST. amend. XIV § 1. To state a prima facie due process claim, "a plaintiff must establish (1) that he possessed a liberty interest and (2) that the defendant(s) deprived him of that interest as a result of insufficient process"
An inmate has a protected liberty interest in being free from segregated confinement but only where the alleged deprivation imposed amounts to an "atypical and significant hardship in relation to the ordinary incidents of prison life."
Although inmates retain their constitutional right to due process protections, "[p]rison disciplinary proceedings are not part of a criminal prosecution, and the fully panoply of rights due a defendant in such proceedings does not apply."
Plaintiff's due process claims center on his inability to call witnesses at the November 2015 disciplinary hearing presided over by H.O. Corbett at Great Meadow and the February 2016 disciplinary hearing presided over by H.O. Esgrow at Southport.
Here, plaintiff admits in his pleadings that both his nonparty hearing assistant and H.O. Corbett informed him that inmate Nesmith refused to testify Compl. ¶ 19. When plaintiff continued to request inmate Nesmith as a witness, H.O. Corbett informed him that "he could not force an inmate to testify as a witness."
Moreover, although plaintiff indicates that H.O. Corbett failed to provide him with a witness refusal form and seems to suggest that such form must be provided to an inmate at his or her disciplinary hearing, see Compl. ¶ 21; Pl. Opp. at 10, the undersigned notes that a violation of DOCCS procedures or state procedural rules regarding disciplinary hearings do not, alone, demonstrate a federal due process claim under § 1983.
The undersigned notes that the only claim against Director Venettozzi is that he upheld C.O. Corbett's disciplinaiy determination on appeal "when there were clear violations of [plaintiff's] right to call witnesses," and then administratively reversed that determination after plaintiff had served his time Compl. ¶¶ 26, 44. As the undersigned recommends dismissal of plaintiff's due process claim against H.O. Corbett because he fails to establish a constitutional violation, it is similarly recommended that plaintiff's due process claim against Director Venettozzi be dismissed.
As to the February 2016 disciplinaiy hearing at Southport, plaintiff contends that his constitutional rights were violated when C.O. Esgrow prevented him from calling certain witnesses
Defendants have proffered Form 2176 entitled Witness Interview Notice concerning plaintiff's February 2016 disciplinary hearing.
The Second Circuit has held that it is the prison official's burden to establish the rationality of declining an inmate's witness request.
However, as to H.O. Esgrow's denial of J. Webster, there is no indication in the pleadings that H.O. Esgrow offered "some explanation" as to why he denied the witness, as is required under the Fourteenth Amendment.
The undersigned notes that the only claim against Acting Director Rodriguez is that he upheld C.O. Esgrow's disciplinary determination on appeal "when there were clear violations of [plaintiff's] right to call witnesses," and then administratively reversed that determination after plaintiff had served his time Compl. ¶¶ 40-41, 44. "In general, the mere fact that a supervisory official affirmed the result of a disciplinary hearing will not suffice to establish that official's personal involvement in an alleged constitutional violation, which is a prerequisite to liability under § 1983."
"The Constitution does not mandate comfortable prisons but neither does it permit inhumane ones, and it is now settled that the treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment"
The objective prong of the test can be satisfied where the plaintiff pleads "conditions [that] either alone or in combination, pose an unreasonable risk of serious damage to [the plaintiff's] health[.]"
Here, plaintiff contends that he was confined in SHU for twenty-three hours a day with visitation restrictions and without access to educational and work programs, telephone, or commissary. Compl. ¶ 42. The undersigned finds that plaintiff's complaint fails to raise facts plausibly suggesting that defendants subjected him to conditions that were sufficiently serious for the purposes of the Eighth Amendment Plaintiff has failed to allege any deprivations of a single, identifiable human need.
As plaintiff has failed to adequately plead an Eighth Amendment conditions of confinement claim, it is recommended that defendants' motion on this ground be granted.
Plaintiff contends that defendants violated his right to be free from cruel and unusual punishment under Article I, § 5 of the New York State Constitution.
The undersigned recommends dismissal of plaintiff's state law claim concerning cruel and unusual punishment in light of the recommendation of dismissal of the federal Eighth Amendment claim pertaining to the same set of facts.
Even if the underlying federal cause of action survived, plaintiff's state law claim is still subject to New York Correction Law § 24. Pursuant to Correction Law § 24(1):
N.Y. CORR. LAW § 24(1). Courts look at the following factors to determine whether a defendant's action is within the scope of employment:
The test to determine whether the defendants' actions fall within the scope of their employment is "whether the act was done while the servant was doing his master's work no matter how irregularly, or with what disregard of the instructions."
(1) Insofar as it seeks dismissal of plaintiff's Fourteenth Amendment due process claim against H.O. Corbett and Director Venettozzi;
(2) Insofar as it seeks dismissal of plaintiff's Eighth Amendment conditions of confinement claim against H.O. Corbett, H.O. Esgrow, Director Venettozzi, and Acting Director Rodriguez;
(3) Insofar as it seeks dismissal of plaintiff's state law claims, the motion be
(1) Insofar as it seeks dismissal of plaintiff's Fourteenth Amendment due process claim against H.O. Esgrow and Acting Director Rodriguez, the motion be
Pursuant to 28 U.S C. § 636(b)(1) and Local Rule 72.1(c), the parties have fourteen days within which to file written objections to the foregoing report Such objections shall be filed with the Clerk of the Court.
Slip Copy, 2018 WL 6069458
FOR THE PLAINTIFF. Arrello Barnes, Pro Se, 00-A-0597, Upstate Correctional Facility, P.O. Box 2001, Malone, NY 12953.
FOR THE DEFENDANT. HON. LETITIA JAMES, OF COUNSEL: COLLEEN D GALLIGAN, Assistant Attorney General, New York State Attorney General, The Capitol, Albany, NY 12224.
Gary L. Sharpe, U.S. District Judge
Barnes' objections are problematic for several reasons. they overlook or misapprehend the reasons supporting the recommendations in the R&R, they rehash arguments previously presented to and rejected by Judge Peebles, and they raise new arguments not presented to Judge Peebles with the initial briefing. For all of these reasons, Barnes' objections are properly classified as general and merit review of the R&R for clear error only. See Almonte v. N.Y.S. Div. of Parole, No. Civ. 904CV484, 2006 WL 149049, at *5-*6 (N.D.N.Y. Jan. 18, 2006). After carefully considering the R&R and Barnes' objections, and finding no clear error — or error of any kind — the R&R, (Dkt. No. 105), is adopted in its entirety.
Accordingly, it is hereby
Slip Copy, 2019 WL 1385297
FOR THE PLAINTIFF: Arrello Barnes, Pro Se, 00-A-0597, Upstate Correctional Facility, P.O. Box 2001, Malone, NY 12953.
FOR THE DEFENDANT: HON. LETITIA JAMES, OF COUNSEL: COLLEEN D. GALLIGAN, Assistant Attorney General, New York State Attorney General, The Capitol, Albany, NY 12224.
Gary L. Sharpe, U.S. District Judge.
Barnes' objections are problematic for several reasons. they overlook or misapprehend the reasons supporting the recommendations in the R&R, they rehash arguments previously presented to and rejected by Judge Peebles, and they raise new arguments not presented to Judge Peebles with the initial briefing. For all of these reasons, Barnes' objections are properly classified as general and merit review of the R&R for clear error only. See Almonte v. N.Y.S. Div. of Parole, No. Civ. 904CV484, 2006 WL 149049, at *5-*6 (N.D.N.Y. Jan. 18, 2006). After carefully considering the R&R and Barnes' objections, and finding no clear error — or error of any kind — the R&R, (Dkt. No. 105), is adopted in its entirety.
Accordingly, it is hereby
Slip Copy, 2019 WL 1385297
FOR THE PLAINTIFF. Arrello Barnes, Pro Se, 00-A-0597, Upstate Correctional Facility, P.O. Box 2001, Malone, NY 12953.
FOR THE DEFENDANT. HON. LETITIA JAMES, OF COUNSEL: COLLEEN D. GALLIGAN, Assistant Attorney General, New York State Attorney General, The Capitol, Albany, NY 12224.
Gary L. Sharpe, U.S. District Judge
Barnes' objections are problematic for several reasons. they overlook or misapprehend the reasons supporting the recommendations in the R&R, they rehash arguments previously presented to and rejected by Judge Peebles, and they raise new arguments not presented to Judge Peebles with the initial briefing. For all of these reasons, Barnes' objections are properly classified as general and merit review of the R&R for clear error only. See Almonte v. N.Y.S. Div. of Parole, No. Civ. 904CV484, 2006 WL 149049, at *5-*6 (N.D.N.Y. Jan. 18, 2006). After carefully considering the R&R and Barnes' objections, and finding no clear error — or error of any kind — the R&R, (Dkt. No. 105), is adopted in its entirety.
Accordingly, it is hereby
Slip Copy, 2019 WL 1385297
(Dkt. No. 23, Attach. 2 at 47-48.)
(emphasis supplied).
Mr. Flake was at the time a United States Congressman from Queens.
N.Y.Comp.Codes R. & Regs. tit. 7, § 701.5(a) (1994) (emphasis added).
