Summary
holding that an inmate does not have a due process right to be physically present at his disciplinary hearing
Summary of this case from Brooks v. PrackOpinion
98-CV-6473 CJS
September 9, 2003
Gary E. Bogle, a/k/a Gary Polite, Southport Correctional Facility, Pine City, NY, for plaintiff
Kelly A. McCarthy, Esq., Rochester, NY, for defendants
DECISION AND ORDER
INTRODUCTION
This is an action pursuant to 42 U.S.C. § 1983, brought by pro se plaintiff, a prison inmate. Plaintiff Gary E. Bogle ("plaintiff") claims that his exclusion from his disciplinary hearing was a violation of due process. Now before the Court is defendants' motion [37-1] for summary judgment. For the following reasons, defendant's motion is granted.
Plaintiff Gary Bogle was housed in the Auburn Correctional Facility under the name of Gary Polite.
PROCEDURAL HISTORY
At all relevant times, plaintiff was an inmate at Southport Correctional Facility ("Southport") and defendants were employees of the New York State Department of Correctional Services ("DOCS") at Southport.Plaintiff filed a civil rights complaint with this Court on November 6, 1998, claiming that defendants Robert J. Murphy ("Murphy") and Southport Senior Corrections Counselor Richard T. Cerio ("Cerio") violated his constitutional due process right to be present during his disciplinary hearing. The Court, in a decision and order filed on January 26, 1999, granted plaintiff's request to proceed in forma pauperis, but dismissed the complaint pursuant to 28 U.S.C. § 1951(e)(2)(B), since plaintiff never claimed that the hearing was invalidated. In a subsequent decision and order, filed on May 24, 1999, the Court granted plaintiff's motion for reconsideration, and then reopened the case on the ground that his disciplinary hearing conviction was reversed and expunged from his record, which was information plaintiff had neglected to include in his original complaint. Both defendants submitted their answers on July 6, 1999, asserting three separate affirmative defenses: (1) that the complaint failed to state a claim upon which relief could be granted; (2) that defendants acted under a reasonable belief and in good faith that their actions were proper and legal and; (3) that the alleged actions were within their discretionary authority.
An inmate has a viable cause of action under § 1983 only if relief from the underlying conviction is obtained. See Burnell v. Coughlin, 975 F. Supp. 473, 475-79 (W.D.N.Y. 1997).
On February 15, 2000, defendants filed a motion for summary judgment supported by a memorandum and two affidavits from each defendant. On October 18, 2000, defendants submitted an amended motion for summary judgment, an affidavit by defendants' attorney, an amended memorandum, an amended affidavit by defendant Richard T. Cerio, and an amended statement of facts. In the amended memorandum, defendants move for summary judgment on three separate grounds:
(1) plaintiff never served any extra SHU time as a result of the eventually reversed May 1997 hearing and therefore, he had no liberty interest that was affected by the alleged due process violation; (2) defendants are entitled to qualified immunity as to their imposition (Cerio) and affirmance (Murphy) of the one year/365 day SHU term imposed on plaintiff as a result of his May 1997 discipl inary hearing because at the time, it was not clearly established under Sandin that such a penalty imposed an atypical and significant hardship requiring due process protection; and (3) defendants are entitled to qualified immunity as to plaintiff's right to be present at his entire disciplinary hearing because his right to be present under the circumstances was not clearly established at the time of the hearing.
Am. Mem. at 2.
FACTUAL BACKGROUND
On May 8, 1997, plaintiff received an Inmate Misbehavior Report charging him with three violations based on an unknown third person's mailing of a contraband package to him. The three charges were pursuant to DOCS' Standards of Inmate Misbehavior Institutional Rules of Conduct: Rule 114.10 (Inmate shall not solicit others to smuggle items into the facility) ( 7 NYCRR 270.2[B] [15] [i]); Rule 113.10 (Inmate shall not possess/exchange a weapon) (7NYCRR270.2[B] [14][i]); and Rule 113.12 (Inmate shall not possess/exchange narcotics) ( 7 NYCRR 270.2[B] [14] [ii]). On May 21, 1997, Cerio commenced a Tier III disciplinary hearing for the above charges. Plaintiff pled not guilty to all three charges.
A Tier III disciplinary hearing is a Superintendent's hearing that is reserved for the most serious disciplinary violations.
During the hearing, Cerio tried to determine whether the contraband package was mailed from plaintiff's home town. Plaintiff assumed that Cerio knew, from a review of plaintiff's records, where plaintiff lived and asked Cerio: "Excuse me but what [do] you mean you don't know where I'm from?" Polite v. Goord, No. 6759-97, slip op. (N.Y.App.Div. Aug. 7, 1998). Cerio took offense to this question, believing that it was an insinuation by plaintiff that Cerio, intending an unfair hearing, had already read plaintiff's file. Cerio decided that plaintiff's insinuation was improper and intolerable behavior. In response, Cerio excluded plaintiff from the proceeding and completed the remainder of the hearing in plaintiff's absence. Cerio found plaintiff guilty on all three charges and sentenced him to 365 days of confinement in the Special Housing Unit ("SHU") and one year loss of good time credit.
Plaintiff appealed to DOCS Commissioner Glenn Goord ("Goord") alleging that Cerio violated his constitutional due process right to be presentatthe hearing by excluding him. On July 25, 1997, Murphy, Goord's designee, affirmed the hearing result. Plaintiff then served his one year of SHU confinement time.
Before serving the SHU sentence from the May 1997 hearing ("Term M"), plaintiff was sentenced for two additional and separate disciplinary infractions ("Term IN" and "Term IV"), which were to be served consecutively. Defendants claim that they credited his time for Term II, to Term III and Term IV.
Terms II, III, and IV are used by defendants to identify the three separate SHU sentences mentioned above. Defendants use this terminology without any further explanation.
On September 11, 1998, plaintiff brought an Article 78 ("Article 78") proceeding pursuant to the New York Civil Procedure Law and Rules against Goord in New York State Supreme Court, Third Judicial District. That court granted plaintiff's petition on the ground that plaintiff was improperly excluded from his hearing. Polite v. Goord, No. 6759-97, slip op. (N.Y.App.Div. Aug. 7, 1998). As a result, the May 1997 Tier III disciplinary hearing determination was annulled and plaintiff's record, with reference to the disciplinary infractions at issue, was expunged.
LEGAL STANDARDS
A. Summary Judgment Standard
The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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." FED. R. Civ. P. 56(c). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). "[T]he movant must make a prima facie showing that the standard for obtaining summary judgment has been satisfied." 11 MOORE'S FEDERAL PRACTICE, § 56.11[1][a] (Matthew Bender 3d ed.). That is, the burden is on the moving party to demonstrate that the evidence creates no genuine issue of material fact. See Amaker v. Foley, 274 F.3d 677 (2d Cir. 2001); Chipollini v. Spencer Gifts, Inc., 814 F.2d 893 (3d Cir. 1987) ( en banc). Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23(1986).
Once that burden has been met, the burden then shifts to the non-moving party to demonstrate that, as to a material fact, a genuine issue exists. FED. R. Civ. P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). "A fact is `material' only if the fact has some affect on the outcome of the suit." Catanzaro v. Weiden, 140 F.3d 91, 93 (2d Cir. 1998) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. at 248). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, 477 U.S. at 248. In determining whether a genuine issue exists as to a material fact, the court must view underlying facts contained in affidavits, attached exhibits, and depositions in the light most favorable to the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962). Moreover, the court must draw all reasonable inferences and resolve all ambiguities in favor of the non-moving party. Leon v. Murphy, 988 F.2d 303, 308 (2d Cir. 1993). However, a summary judgment motion will not be defeated on the basis of conjecture or surmise or merely upon a "`metaphysical doubt' concerning the facts." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)); Knight v. United States Fire Ins. Co., 804 F.2d 9 (2d Cir. 1986). Rather, evidentiary proof in admissible form is required. FED. R. CIV. P. 56(e). Furthermore, the party opposing summary judgment "may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant's previous deposition testimony." Hayes v. New York City, Dep't of Corr., 84 F.3d 614, 619 (2d Cir. 1996) (citations omitted).
A court should read a pro se litigant's papers liberally, interpreting them "to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). However, when alleging a violation of a civil rights statute, even a pro se litigant must make "specific allegations of fact indicating a deprivation of rights, instead of a litany of general conclusions that shock but have no meaning." Barr v. Adams, 810 F.2d 358, 363 (2d Cir. 1987).
B. Deprivation of a Protected Interest
To pursue a due process claim under 42 U.S.C. § 1983, a plaintiff must show that he "enjoyed a protected interest, and defendant's deprivation of that interest occurred without due process of law." Taylor v. Rodriguez, 238 F.3d 188, 191 (2d Cir. 2001) (citing Tellier v. Fields, 230 F.3d 502, 511 (2d Cir. 2000)). A prisoner asserting that he was denied due process in connection with prison disciplinary hearings that resulted in segregative confinement or a loss of privileges, must make a threshold showing that the deprivation of which he complains imposed an "atypical and significant hardship on [him] in relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 484 (1995). "After Sandin, in order to determine whether a prisoner has a liberty interest in avoiding disciplinary confinement, a court must examine the specific circumstances of the punishment." Brooks v. DiFasi, 112 F.3d 46, 49 (2d Cir. 1997).
In determining atypicality, duration of the confinement is an important consideration. Colon v. Howard, 215 F.3d 227, 231 (2d Cir. 2000) (citing Sealey v. Giltner, 197 F.3d 578. 586 (2d Cir. 1999)) ("Both the conditions and their duration must be considered, since especially harsh conditions endured for a brief interval and somewhat harsh conditions endured for a prolonged interval might both be atypical") (citation omitted); see also Welch v. Bartlett, 196 F.3d 389, 392-93 (2d Cir. 1999). Confinement that lasts 101 to 305 days requires a detailed factual inquiry into duration, in relation to "periods of comparable deprivation typically endured by other prisoners in the ordinary course of prison administration," Welch, 196 F.3d at 394, or "evidence of the psychological effects of prolonged confinement in isolation and the precise frequency of SHU confinements of varying durations." Colon, 215 F.3d at 232. Despite the Second Circuit's hesitancy to establish any bright line test in determining atypicality, it has held that confinement in normal SHU conditions for 305 days is sufficient to satisfy the Sandin standard. Id. at 231 ("There are no precise calipers to measure the severity of SHU hardship, but we believe that wherever the durational line is ultimately drawn, 305 days satisfies the standard").
C. Violation of Due Process
In addition to showing a deprivation of a protected interest that meets the Sandin standard, plaintiff must also show that this deprivation occurred without due process of law. See Taylor, 238 F.3d at 191 (citing Tellier, 230 F.3d at 511).
States can "provid[e] inmates with a procedural safeguard in disciplinary hearings that is not required by the U.S. Constitution . . . and where that safeguard is not required by the United States Constitution's Due Process Clause, its denial cannot constitute a violation of that clause." Dawes v. Leonardo, 885 F. Supp. 375, 377-78 (citing Patterson v. Coughlin, 761 F.2d 886, 892 (2d Cir. 1985)). For example, under New York State regulations, an inmate has the right to "be present at the hearing unless he refuses to attend, or is excluded for reason of institutional safety or correctional goals." N.Y.Comp.Codes R. Regs. tit. 7, § 254.6. Although a plaintiff may bring a successful Article 78 proceeding pursuant to this New York regulation, a claim understate law does not necessarily provide a viable due process claim under § 1983. See Dawes, 885 F. Supp. 375, 377-78. Therefore, the Court must determine whether an inmate's protection from an allegedly unwarranted exclusion from his hearing under New York regulations, is also a constitutional right requiring due process.
In Wolff v. McDonnell, 418 U.S. 539, (1974), the Supreme Court established certain minimum requirements for procedural due process in an inmate's disciplinary hearing: "(1) that the inmate be given written notice of the charges against him no less than 24 hours in advance of the hearing; (2) that the factfinder at the hearing provide a written statement setting forth `the evidence relied on and reasons for the disciplinary action;' and (3) that the inmate be allowed to call witnesses and present documentary evidence in his defense, as long as doing so is not `unduly hazardous to institutional safety or correctional goals.'" Sims v. Artuz, No. 96-0216, 2003 WL 1746263, at *11 (S.D.N.Y. March 31, 2003) (quoting Wolff, 418 U.S. at 564, 566), rev'd in part by 230 F.3d 14 (2d Cir. 2000).
ANALYSIS
A. Deprivation of Protected InterestThe Court rejects defendants' contention that plaintiff suffered no loss of a liberty interest. Defendants argue that plaintiff's time served in SHU (Term II) was credited to time he owed for two separate violations (Term III and Term IV). Defendants assert that as a result of the credits, plaintiff essentially never served any time for his Term II sentence. In support of their argument, defendants cite to Young v. Hoffman, 970 F.2d 1154 (2d Cir. 1992). However, Young is distinguishable from this case, since the plaintiff in Young never served any of his sentence. Id. at 1155. Furthermore, there is nothing in Young that allows time served for one violation to be credited to another, completely separate violation.
Defendants also argue that, following Russell v. Scully, 15 F.3d 219 (2d Cir. 1994), plaintiff did not suffer any loss of a protected interest because he would not have been released from SHU confinement even if the Term II sentence had not been given. The Court rejects this argument as well. In Russell, the Second Circuit determined that the plaintiff was not deprived of any protected liberty interest, since the plaintiff's confinement was not punitive in nature, but rather, characterized as administrative under a New York regulatory scheme, which allowed confinement pending an appeal. Id. at 221-22 (citing Hewitt v. Helms, 459 U.S. 460, 467 (1983)). In the case at bar, however, plaintiff's confinement was not administrative, but rather, punitive in nature. Furthermore, in light of Sandin, Russell's reliance on Hewitt is no longer well founded. In Sandin, the Supreme Court criticized "the search for a negative implication from mandatory language in prisoner regulations" and concluded that "[t]he time has come to return to the due process principles we believe were correctly established and applied in Wolff and Meachum." Sandin, 515 U.S. at 483; Wolff, 418 U.S. at 564, 566; Meachum v. Fano, 427 U.S. 215 (1976). Instead of looking to the language of administrative regulations, the Court must determine whether a plaintiff has shown that the alleged deprivation imposed an "atypical and significant hardship on [him] in relation to the ordinary incidents of prison life." Sandin, 515 U.S. at 484.
Applying the legal standard above, the Court finds that plaintiff's deprivation meets the Sandin criterion. See Sandin, 515 U.S. at 484. Plaintiff was confined in SHU for 365 days, which surpasses the 305 days of SHU confinement found to meet Sandin's requirement in Colon. Therefore, his year-long confinement is sufficient to rise to the level of an "atypical and significant hardship on [him] in relation to the ordinary incidents of prison life." Id.
B. Violation of Due Process
The Court rejects defendants' argument that the state court Article 78 reversal cured any possible due process violation resulting from the disciplinary hearing. Polite v. Goord, No. 6759-97, slip op. (N.Y.App. Div. Aug. 7, 1998). In support of their argument, defendants rely on Young v. Hoffman, 970 F.2d 1154, 1156 (2d Cir. 1992), in which the Second Circuit stated that "[t]he administrative reversal constituted part of the due process protection he received, and it cured any procedural defect that may have occurred." Id. at 1156. However, after Young, the Second Circuit held in Patterson, 761 F.2d at 893, that any hearing subsequent to the deprivation, such as an Article 78 proceeding, is not enough to meet the due process requirements. "Once a cause of action for a constitutional violation accrues, nothing that the state does subsequently can cut off the § 1983 action." Walker v. Bates, 23 F.3d 652, 657 (2d Cir. 1994) (quoting Patterson, 761 F.2d at 893). Therefore, even though the New York State Supreme Court's decision annulled the original May 1997 hearing result, the subsequent reversal would not necessarily rectify the due process violation. See Walker, 23 F.3d at 657; see also Patterson, 761 F.2d at 893. Nonetheless, the Court finds that plainitiff did not have a due process right to be physically present at his disciplinary hearing. In making this finding, the Court relies on Wolff and Francis v. Coughlin, 891 F.2d 43 (2d. Cir. 1989).
While Wolff, as discussed above, establishes minimum due process requirements for prison inmates, it does not specifically provide an inmate with a due process right to be physically present at his disciplinary hearing. See Francis, 891 F.2d at 43. Subsequent to Wolff, the Second Circuit in Francis v. Coughlin, supra, specifically held that an inmate's right to be present at his hearing could not be implied from any of Wolff's due process requirements. Id. at 48; but cf. Freeman v. Rideout, 308 F.2d 949 (2d Cir. 1986). Francis interpreted Wolff's third due process requirement as only providing the limited right to call witnesses and present documentary evidence in his defense, while the right to be physically present at testimony was a "separate question." Id. Moreover, Francis held that prison inmates did not have a constitutional right to be present during any kind of witness testimony, whether exculpatory or incriminatory. Id.; see also Bolden v. Alston, 810 F.2d 353, 358 (2d Cir. 1987); Young v. Kihl, No. 89-1580E, 1990 WL 33183, at *2 (W.D.N.Y. March 20, 1990). Although the Second Circuit later held in Sims v. Artuz, 230 F.3d 14, 27 (2d Cir. 2000) that the denial of an inmate's right to call witnesses, present evidence, and comment on the charges against him during a disciplinary hearing were facially valid due process claims, it did not rule on the issue of whether an inmate has a constitutional right to be physically present at his hearing. Id.
In its 1986 Freeman decision, the Second Circuit paraphrased Wolff's third due process requirement as an inmate's right to "the opportunity to appear at the hearing, to call witnesses, and to present rebuttal evidence." Id. at 953 (emphasis added). Francis, decided three years later, explicitly rejected the implication in Freeman.
Therefore, this Court is constrained to follow Francis' interpretation of Wolff, which was subsequent to Freeman. Following Wolff, Francis, and Bolden, the Court holds that since Wolff does not positively grant an inmate the right to be present at his hearing, such a due process right cannot be implied. Furthermore, in the absence of a due process right, there can be no due process violation.
The Court's conclusion that an inmate does not have a due process right to be physically present at his disciplinary hearing is consistent with the well-established policy that since a prison operation is an "extraordinarily difficult undertaking," prison administrators should be allowed the necessary discretion without "being subject to unduly crippling constitutional impediments." Wolff, 418 U.S. at 566-67. In carrying out this policy, the courts must strike a balance between an inmate's rights and the correctional facility's interests. See Freeman, 808 F.2d at 954 ("[I]t is the responsibility of the court to balance the concern to safeguard the rights of individual inmates with the legitimate needs and aims of the penal institution"); see also Superintendent, Mass. Correctional Inst. v. Hill, 472 U.S. 445 (1985); Ponte v. Real, 471 U.S. 491 (1985). Providing an inmate a limited right to call witnesses and present evidence in his defense, but not a guarantee to be physically present at his disciplinary hearing, strikes this balance. An inmate is allowed to prepare and present his defense, while correctional facilities are provided the necessary protection and safety from confrontation arising during disciplinary hearings. See Wolff, 418 U.S. at 562.
Therefore, although New York regulation section 254.6 explicitly provides inmates a right to be present at their disciplinary proceedings, it does not create a constitutional due process right. Since, under Wolff, inmates are not afforded a constitutional due process right to be present at their hearings, plaintiff's ejection during his disciplinary hearing was not a due process violation. In the absence of a due process violation, plaintiff fails to meet the second prong of his § 1983 claim. See Taylor, 238 F.3d at 191.
CONCLUSION
For all of the foregoing reasons, defendant's motion [37-1] for summary judgment is granted.
So ordered.