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Claudio v. Herbert

United States District Court, W.D. New York
Feb 10, 2005
01-CV-0120Sr (W.D.N.Y. Feb. 10, 2005)

Opinion

01-CV-0120Sr.

February 10, 2005


DECISION AND ORDER


Pursuant to 28 U.S.C. § 636(c), the parties have consented to the assignment of this case to the undersigned to conduct all proceedings in this case, including the entry of final judgment. Dkt. #31.

Currently before the Court is defendant Breckon's motion for summary judgment dismissing plaintiff's amended complaint alleging that he denied plaintiff due process during a prison disciplinary hearing and plaintiff's motion for summary judgment against defendant Breckon. Dkt. ##33, 61. For the following reasons, defendant Breckon's motion is granted and plaintiff's motion is denied.

BACKGROUND

On May 25, 2000, plaintiff, an inmate at the Attica Correctional Facility ("Attica"), received an Inmate Misbehavior Report charging that on May 24, 2000, he violated prison rules 100.11 (inmates shall not assault staff), and 104.11 (inmates shall not engage in any violent conduct). Dkt. #36, Exh. C, p. 4. Specifically, Corrections Officer ("C.O."), Buth alleged that as plaintiff was waiting in B lobby to return to his cell after having being identified as a participant in a fight among a number of inmates in B Yard, "he turned and elbowed me — CO Buth in the left forehead above the eye using his left elbow." Dkt. #36, Exh. C., p. 4.

Plaintiff appeared before Commissioner's Hearing Officer ("CHO"), Sinski on May 30, 2000, but the hearing did not commence because plaintiff complained that he had not been assigned a civilian assistant as requested. Dkt. #36, Exh. A, pp. 2-3. The hearing reconvened on June 1, 2000 before CHO Breckon. Dkt. #36, Exh. B, p. 1 ("B1"). Plaintiff complained that he was appearing before a different CHO and that he objected to the extension of the hearing. B4.

Plaintiff requested that his mechanical restraints be applied in front, but CHO Breckon informed him that he was required to be cuffed from behind anytime he was out of his cell because he was on a restraint order in SHU. B7-8. CHO Breckon advised plaintiff that he could access his papers if he stood up and placed his papers on "that shelf." B8. Plaintiff continued to object to the placement of his handcuffs at various times during the disciplinary hearing. B17, 20.

In contrast to the allegations in the misbehavior report, plaintiff alleged that as he turned the corner to be escorted back to his cell,

Officer Prine jumped me with his nightstick in my back. That took my wind. Officer Buth slapped my head into the corner, and the from that point, it was just . . . a total . . . ass whipping. I don't basically know . . . what the hell was happening . . . Now, Officer Johnson, Officer . . . Porter, uh, Prine, Sgt. Keenan hit me with the handcuffs on my elbow, and there is a scar right there. He hit me, and it busted my skin open.

B15. Plaintiff claimed that this assault was fabricated in retaliation for plaintiff's complaints about corrections officers during his prior stay at Attica, which precipitated an Inspector General's investigation. B11.

Specifically, plaintiff alleged that he and CO Buth "had problems when I was in B-Block" in 1994. B15. Plaintiff also alleged that CO Buth, Prine, Yackeren and Phelps, "all these guys" who are "still here in this jail," remembered plaintiff's complaint sparking the Inspector General's investigation because "some of them got suspended or something to that effect, and that is why I am asking you to bring all of this stuff into the record to show that these charges are fabricated." B16. Plaintiff reiterated his request for the Inspector General's report to "prove to you that these allegations that . . . I am charged with are false." B11. CHO Breckon accepted plaintiff's testimony that he had "made these allegations," but denied his request for the Inspector General's report, stating "I don't feel you are entitled to them. I don't feel they are essential." B11-12. CHO Breckon clarified, "these are all prior incidents that you claim took place. They will not rebuttal [sic] what the officer is saying." B12.

Plaintiff also claimed that several of the officers implicated in the Inspector General's investigation had made remarks such as, "I remember you;" "I was afraid it was you;" or "I heard you back in," and had "burned" him from "Yard, chow, phone calls, showers. . . ." B11. Plaintiff's request to call inmates Diaz, Jones, Gonzales and Malowsky to testify as to these prior acts of retaliation by corrections officers against plaintiff was denied after plaintiff admitted that these inmates were not present at the time of the incident. B10, 18-19, 57.

CHO Breckon also accepted plaintiff's claim that he expressed concern to his family and civilian assistant that he was in harm's way as long as he remained at Attica, but denied plaintiff's request to call his civilian assistant and family members to testify regarding plaintiff's expression of this fear as irrelevant. B8-9. CHO Breckon also denied plaintiff's request for CO Stovall to testify that plaintiff informed him of his issues with corrections officers during his previous stay at Attica and was advised to contact Classification and Movement as irrelevant and redundant. B64, 79.

Plaintiff also requested that his civilian assistant be called to testify with respect to who informed him that production of certain documents was denied and the steps he took to investigate this matter, but CHO Breckon denied this request, stating

it is not his job to investigate the matter. It is his job to obtain documents for you and to interview witnesses if you wish them interviewed . . . Or to see if they want to testify . . . He did that. Documents that he went to obtain were denied. I went over those documents again with you at the beginning of this hearing. I am also denying them. Therefore, no, I am not calling him as a witness.

B8, 42-43, 57.

In addition to the Inspector General's Report, plaintiff sought medical reports and photographs of the injuries sustained by CO Buth. B7. CHO Breckon denied that request, stating "We don't give you staff . . . reports regarding our medical." B7. Plaintiff repeated his request for CO Buth's medical record "[t]o prove that he was not hit by me." B13. Plaintiff claimed that "Officer . . . Buth is 6'4". I am 5'7". It would be impossible for me to hit him with my elbow on his . . . eye . . . he is too high." B13.

CO Porter testified that he observed plaintiff strike CO Buth and that he assisted CO Buth in the Use of Force to subdue plaintiff by grabbing his legs. B21-22. CO Porter recalled that CO Buth was standing at the time he was struck. B22.

The hearing continued on June 5, 2000, with the testimony of CO Johnson, who stated that he did not witness the alleged assault on CO Buth. B25. CHO Breckon denied plaintiff's request to ask CO Johnson if he was the CO who escorted him to SHU, stating, "[t]here is nothing in this Misbehavior Report indicating that I should be having to decide what happened or what didn't happen after the incident." B25-26. Plaintiff responded:

Well, Officer Johnson was there, also and he was the one also hitting me when they were trying to put restraints on me. Okay. So you didn't even afford me the opportunity to ask any questions. You just determined that there was no further questions and excused him. That's not being fair, sir.

B26. Because CO Buth and Prine were not on duty, the hearing was adjourned until June 6th. B27.

On June 6th, CO Prine testified that he observed plaintiff strike CO Buth with his elbow and then helped subdue plaintiff. B29, 32. CO Prine denied any prior "dealings" or verbal confrontations with plaintiff and specifically denied firing plaintiff from his job in "feed up," in 1993 or 1994, stating that he was never "in control of feed up men." B33-34. CO Prine did not recall whether CO Johnson was in the area at the time of the incident, but did recall that Sgt. Keenan supervised the application of restraints on plaintiff. B36-37. CO Prine testified that plaintiff

struggled for awhile, and then I believe we got his hands and arms behind his back. That's when he stopped. Somebody had to hold his legs.

B37. CO Prine denied striking plaintiff in the face and denied observing any other officers strike plaintiff in the face, but indicated that plaintiff fell into the radiator during the struggle. B38-39.

CHO Breckon informed plaintiff that CO Buth was off duty, and that he would need to request an extension if he wanted to call CO Buth as a witness. B42. Plaintiff indicated that he wanted CO Buth to testify. B42. Plaintiff's hearing continued on June 20th, at which time CHO Breckon noted that an extension had been obtained so that CO Buth could testify. B43-44. CO Buth testified that he is 6'5" and agreed that plaintiff was approximately 5'8". B44. CO Buth recalled bringing plaintiff into the B-Block hallway, but did not recall whether he or CO Prine conducted the pat frisk. B46. CO Buth testified that after plaintiff moved from the hallway into the lobby, while waiting in B-Lobby for other inmates to be locked into their cells, plainitff hit CO Buth above his eye with his left elbow. B49. CO Buth stated that he was not standing upright at the time, explaining:

When I am positioned behind an inmate, I never stand staring [sic] up in an upright position because that is letting myself and my guard down because I could very easily be knocked on my buttocks if I stood straight up by an elbow or a kick . . . I always bend down and lower myself to the level of that inmate.

B49. Thereafter, CO Buth grabbed plaintiff from behind his upper body with both arms in a "bear hug type of hold." B50. CO Buth denied losing any work time following the incident. B49. He also denied any prior dealings with plaintiff. B51.

Following CO Buth's testimony, plaintiff noted that CO Prine and CO Porter testified that CO Buth was standing straight up when plaintiff hit him, which contradicted CO Buth's testimony that he was stooped over. B52. CHO Breckon responded that "so far, everyone of your witnesses have said that you hit this officer." B52. CHO Breckon also opined that "[e]ven if [he] was standing straight up, I could see where you could hit him very easily." B53.

CO Zak testified that he escorted plaintiff out of the Yard and turned him over to CO Buth before returning to the Yard with Sgt. Keenan. B53-54. Thus, CO Zak did not see the incident. B53. Plaintiff then noted that he had "just established that Officer Buth did have control of me entering from the Yard and that Officer Buth, in fact, did pat frisk me." B55. In response, CHO Breckon stated: "I got to tell you right now . . . so far . . . the only thing you have established with any certainly [sic] at all . . . is that you hit Officer Buth." B55. CHO Breckon then denied plaintiff's assertion that he was "predeterminating" the judgment, informing plaintiff that

I am letting you know that while you are bringing up little minute things and . . . people's perceptions of how they stand or how they fall or how somebody gets hit are all gonna be different. Nobody is ever going to see exactly the same picture. Nobody has yet said that you did not hit Officer Buth.

B55.

Plaintiff then requested the B-Block Hall Captain, Officer Kozlowski, to "verify that I did not strike this Officer." B56-57. CHO Breckon determined that the Hall Captain was off duty and offered to obtain another extension to complete the hearing, but opined, "quite frankly, I doubt very much that he is going to come forward and say that you didn't strike Officer Buth." B57. Thereafter, plaintiff complained that the CHO was not permitting him to submit evidence with respect to his prior relationship with certain corrections officers, prompting the following exchange:

CHO: So, since you had problems with some other officer here. [sic] Now, you're always gonna have problems. Is that what you're saying?

Pl: Of course I am.

CHO: No, not at all.

Pl: Because Prine, Officer Prine was one. All right. Officer Prine was one, and he was there. Now, you [sic] not letting me establish that. Now, we called the guy . . . Zak. Zak said that he did actually bring me in. Now, all these guys, they are gonna come in here, and they are gonna tell you, "Listen, I have no recollection. I have this. I have that." Of course they are gonna say that. That's the code of silence.
CHO: So, then I should say then of course you're gonna lie and say you didn't do it. You're just and [sic] inmate, and you're just lying. So, then I should say that?

Pl: Well, of course no.

CHO: Is that what you are telling me?

Pl: No. I'm trying to prove to you that I did not do it. CHO: Okay.
Pl: Because that officer is 6'5", and he said he squatted down. That's bullshit because you have Porter and you have Prine that said that he was standing straight up. So, who's lying here?
CHO: I don't believe anybody's lying here as far as they go.

B60-61.

The hearing continued on June 13, 2000. B62. CO Kozlowski testified that he was busy at the lobby desk answering phones as the inmates were being brought in from the yard, and that he did not recall observing this particular incident. B62-63.

Plaintiff then requested testimony from CO Curello, but was advised that there is no individual by the name of Curello. B64. Plaintiff indicated that the CO might be named Turello, stating

Turello, Curello, something like that, something to that effect. He works in C-Block, and he was one of the responding officers that came to that area.

B64-65. CO Turello testified that he was not working at the time of the incident. B77. CHO Breckon denied plaintiff's request for testimony from CO Curello on the grounds that there was no such officer. B79.

Plaintiff also requested testimony from Sgt. Randall regarding the misbehavior report involving the altercation in the yard that day, which was dismissed. B65. The CHO accepted plaintiff's statement that he did not participate in the events that took place in the yard, but denied Sgt. Randall as a witness on the ground that his testimony was not relevant. B79. CHO Breckon denied the testimony from the B-Yard Tower Officer for the same reason. B79.

Sgt. Keenan testified that he escorted plaintiff in from the yard and handcuffed plaintiff in the lobby. B67, 69. Although he completed the Use of Force report with respect to this incident, he did not witness the use of force, but completed the report based upon information obtained from those officers who were involved in the incident. B70. CHO Breckon denied plaintiff's request to question Sgt. Keenan regarding the extent of CO Buth's injury or whether Sgt. Keenan yelled to the officers to stop hitting plaintiff. B71, 73.

In response to plaintiff's ongoing argument that he could not have elbowed CO Buth in the forehead because his hands were behind his back and CO Buth was so much taller than plaintiff, CHO Breckon opined that

This is what I have gotten so far from the testimony that has been given. You were brought in. Whether or not your hands [were] behind your back or they had a hold of your arms really isn't relevant. They may . . . very well have had them, your arms . . . behind your back and had been . . . controlling you at that point. It sounds from the testimony gathered that you were taken through the metal detector in B-Corridor, cleared that. You were brought back into B-Lobby, and you were standing in a corner or standing against the wall or standing somewheres [sic] in B-Lobby waiting to go upstairs. At that point, you may or may not have had your hands behind your back. They may have been on the way. They may or may not have been controlling you. It sounds like they were bringing in an awful lot of inmates . . . At that point, they may have felt you posed no threat. Then, for whatever reason, according to all the testimony that was given by your witnesses, you assaulted Officer Buth by elbowing him. Now, you say you can't do this because he's standing straight up. He says he was bent over. Two other officers say he was straight up. Their recollections of that may not be accurate. I don't know. I don't care if he was standing on a stool. Quite frankly, if you want to strike somebody, you can strike them.

B77-78. Plaintiff then asked what reason he would have to strike CO Buth, prompting the following exchange:

CHO: I don't know. Why do inmates ever assault officers, Inmate Claudio? Probaby because . . . there is something wrong with them. That's why they're inmates. That's why they're in jail because they are violent individuals.
Pl: But there has to be a reason. This is my point. There has to be a reason.
CHO: Well, I guess the reason must be because you are a violent individual.
Pl: You just don't go and strike a person for no reason. There has to be a reason. I don't know this guy. I don't know him. I'm telling you that these that this shit here was a set-up.

CHO: Maybe you don't like officers.

Pl: Oh my god. Well —

CHO: Anything else?

Pl: Yes. Well . . . I've been confined for twenty years. All right, and I have no assault on staff. So, why all of the sudden out of just the clear blue sky I'm just gonna decide one day fuck it. I'm gonna get up, and I'm gonna strike an officer for no apparent reason.
CHO: I don't know. Why, out of, just out of the clear blue sky somebody decides to go out and kill somebody? They just do. Right?

B78-79.

CHO Breckon found plaintiff guilty of both charges and sentenced him to 24 months SHU confinement, including loss of packages, commissary, telephones, personal headphones or earphones. B80. Upon release from SHU, plaintiff would lose recreation privileges for an additional 24 months. B80. In support of this sentence, CHO Breckon indicated that

Consideration was given to the fact that you were just released from a previous disposition. That was on 4/7/00, of approximately thirteen months confinement to S.H.U. for assaulting an inmate. Apparently, you were unable to control yourself for more than two months in population. Hopefully, this disposition will serve that purpose and deter you the next time you are released to population.

B80.

The results of the disciplinary hearing were reversed upon review by the Director of Special Housing/Inmate Disciplinary Program on March 26, 2001. Dkt. #36, Exh. E. By letter dated May 16, 2002, Director Selsky advised plaintiff that the "hearing was reversed due to a problem with witnesses." Plaintiff's Exh. M.

Plaintiff commenced this action, pro se, pursuant to 42 U.S.C. § 1983, alleging, as relevant to the instant motions for summary judgment, that defendant Breckon denied him due process during the course of the June, 2000 disciplinary hearing. Dkt. #5, p. 6. Specifically, plaintiff complains that defendant

Breckon denied the Plaintiff meaningful employee assistan[ce]; medical reports/pictures of the officers' injuries; inmate witnesses; denial of past documentary evidence file on officers [sic]; denial of civilian witnesses; handcuff from behind; Plaintiff had two hearing officers; the extensions that were given were in violation; denied the right to question witness J. Johnson; the hearing officer was unfair/partial and he prove[d] this by the statements he made and actions; failed to obtain the true identification of Officer Carrier [sic]; the penalty impose[d] was in violation of the departmental guidelines for disposition.

Plaintiff withdraws his claim with respect to the change of hearing officer. Dk t. #42, p. 10.

Dkt. #5, p. 6.

ANALYSIS

Summary Judgment

Summary judgment is appropriate "if 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 judgment as a matter of law." Fed.R.Civ.P. 56(c). "In reaching this determination, the court must assess whether there are any material factual issues to be tried while resolving ambiguities and drawing reasonable inferences against the moving party, and must give extra latitude to a pro se plaintiff." Thomas v. Irvin, 981 F. Supp. 794, 799 (W.D.N.Y. 1997) (internal citations omitted).

A fact is "material" only if it has some effect on the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see Catanzaro v. Weiden, 140 F.3d 91, 93 (2d Cir. 1998). 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, 477 U.S. at 248; see Bryant v. Maffucci, 923 F.2d 979 (2d Cir.), cert. denied, 502 U.S. 849 (1991).

Once the moving party has met its burden of "demonstrating the absence of a genuine issue of material fact, the nonmoving party must come forward with enough evidence to support a jury verdict in its favor, and the motion will not be defeated merely upon a 'metaphysical doubt' concerning the facts, or on the basis of conjecture or surmise." Bryant, 923 F.2d at 982. A party seeking to defeat a motion for summary judgment

must do more than make broad factual allegations and invoke the appropriate statute. The [party] must also show, by affidavits or as otherwise provided in Rule 56 of the Federal Rules of Civil Procedure, that there are specific factual issues that can only be resolved at trial.
Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995).

Deprivation of Due Process

To state a cognizable § 1983 due process claim, a plaintiff must demonstrate that he possessed a protected liberty or property interest and that he was deprived of that interest without due process. Bedoya v. Coughlin, 91 F.3d 349, 351-52 (2d Cir. 1996); Frazier v. Coughlin, 81 F.3d 313, 316 (2d Cir. 1996). Assuming for the purposes of this motion that the duration and conditions of plaintiff's disciplinary confinement of 10 months SHU confinement constitute an "atypical and significant hardship . . . in relation to the ordinary incidents of prison life," sufficient to implicate a liberty interest, the Court will focus its attention on the second prong of the due process analysis, to wit, whether plaintiff received due process. See Sandin v. Conner, 515 U.S. 472, 484 (1995); Colon v. Howard, 215 F.3d 227, 231 (2d Cir. 1999).

Extension of Time to Conduct Disciplinary Hearing

Plaintiff asserts that it was an abuse of power and a violation of DOCS protocol to extend the deadline for completion of his disciplinary hearing. Dkt. #42, p. 11. The defendant asserts that the hearing extensions do not implicate constitutional rights and did not violate state procedures inasmuch as the extensions were granted to accommodate plaintiff's request for witnesses. Dkt. #34, p. 12.

Pursuant to 7 N.Y.C.R.R. § 251-5.1, prison disciplinary hearings must be commenced within seven days and completed within fourteen days of the alleged violation unless a delay has been authorized by the Commissioner. The misbehavior report involved an incident which transpired on May 24, 2000. Dkt. #36, Exh. C. His disciplinary hearing commenced on May 30, 2000, within the seven day window. Dkt. #36, Exh. A, p. 1. However, in response to plaintiff's complaint that he had not received a civilian employee assistant as requested, the CHO found a civilian employee assistant for plaintiff and adjourned the hearing so that plaintiff could receive assistance from him. Dkt. #36, Exh. A, pp. 2-3. Accordingly, an extension was granted so that the hearing could reconvene on June 1, 2000. Dkt. #36, Exh. B. Thereafter, the hearing was adjourned to accommodate the schedules of witnesses requested by plaintiff, with extensions requested and granted through June 13, the date of disposition. Dkt. #36, Exh. C. Thus, there was no violation of DOCS regulations. Even if there were, violations of state procedural regulations do not establish federal constitutional violations. See Davis v. Scherer, 468 U.S. 183, 194 (1984); Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995); Bolden v. Alston, 810 F.2d 353, 358 (2d Cir.), cert. denied 484 U.S. 896 (1987).

Denial of Documents and Witnesses

Plaintiff complains that the CHO improperly denied him access to documents and testimony from witnesses. Dkt. #42, pp. 2-10.

In Wolff v. McDonnell, the Supreme Court of the United States determined that an

inmate facing disciplinary proceedings should be allowed to call witnesses and present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals.
418 U.S. 539, 566 (1974). In reaching this conclusion, the Court recognized that

Prison officials must have the necessary discretion to keep the hearing within reasonable limits and to refuse to call witnesses that may create a risk of reprisal or undermine authority, as well as to limit access to other inmates to collect statements or to compile other documentary evidence.
Id. In exercising that discretion, prison officials must be able to

explain, in a limited manner, the reason why witnesses were not allowed to testify . . . either by making the explanation a part of the "administrative record" in the disciplinary proceeding, or by presenting testimony in court if the deprivation of a "liberty" interest is challenged because of that claimed defect in the hearing. In other words, the prison officials may choose to explain their decision at the hearing, or they may choose to explain it "later."
Ponte v. Real, 471 U.S. 491, 497 (1985). A hearing officer may rationally exclude witnesses or documents when they would be irrelevant or unnecessary to a determination of the issues in the disciplinary hearing. Kalwasinski v. Morse, 201 F.3d 103, 109 (2d Cir. 1999). The burden is on the prison official to demonstrate "the rationality of his position." Fox v. Coughlin, 893 F.2d 475, 478 (2d Cir. 1990).

Employee Assistant

Plaintiff claims that the CHO violated DOCS protocol by refusing to call his civilian assistant regarding the production of documents. Dkt. #42, p. 7. CHO Breckon denied this request, informing plaintiff that because he had "made the final decision" to deny some of the documents requested, the assistant's testimony would not be relevant. B8, 42-43, 57. This is a rational basis for the denial of plaintiff's employee assistant as a witness. CHO Breckon discussed with plaintiff the reason for his denial of certain documents, rendering the assistant's testimony with respect to such documents moot.

Testimony Documents Regarding Retaliation

Plaintiff asked for documents and witnesses relating to his defense that the misbehavior report was fabricated against him in retaliation for plaintiff's prior complaints about corrections officers at Attica, which allegedly resulted in an Inspector General's investigation of the facility. Specifically, plaintiff requested production of the Inspector General's 1994 Report; testimony from his assistant and plaintiff's family members confirming plaintiff's fear of retaliation; testimony from inmates Diaz, Jones, Gonzales and Malowsky regarding prior acts of retaliation by corrections officers against plaintiff; and testimony from CO Stovall that in response to plaintiff's fear of retaliation, he instructed plaintiff to contact Classification and Movement. B8-9, 11-12, 18-19, 57, 64, 79. CHO Breckon accepted plaintiff's statements that he had made complaints which generated an Inspector General's investigation and plaintiff's expressed feared of retaliation, but denied these requests as irrelevant. B8-12, 18-19, 57, 64, 79.

Plaintiff argues that the documentary evidence establishes that inmate Diaz was in the vicinity at the time of the incident. Dkt. #42, p. 4. Plaintiff did not, however, proffer inmate Diaz as a witness to the incident at any time during the disciplinary hearing.

CHO Breckon was justified in accepting plaintiff's testimony that his complaints precipitated an Inspector General's investigation without producing the report since the plaintiff's complaints and the resulting investigation would provide ample motivation for retaliation by the corrections officers regardless of the results. CHO Breckon was also justified in accepting plaintiff's assertion that he feared retaliation without receiving testimony from witnesses who heard plaintiff express that fear. Accepting these statements as true, however, did not preclude CHO Breckon from finding plaintiff guilty of the disciplinary charges.

The Federal Constitution does not require evidence that logically precludes any conclusion but the one reached by the disciplinary board. Instead, due process in this context requires only that there be some evidence to support the findings made in the disciplinary hearing.
Superintendent v. Hill, 472 U.S. 445, 457 (1985). Thus, CHO Breckon was free to weigh the time that had lapsed between the Inspector General's investigation and the misbehavior report; the testimony of CO Buth and CO Prine denying any prior interaction with plaintiff; plaintiff's contradictory testimony that he and CO Buth had problems in 1994 and that he didn't "know this guy;" and the testimony from CO Buth, CO Prine, and CO Porter that plaintiff did hit CO Buth in finding plaintiff guilty of the disciplinary charges. B15, 21-22, 29, 32-34, 49, 51, 78-79.

Production of Documents — Medical Records

Plaintiff asserts that CO Buth's medical records would demonstrate that CO Buth was injured by a nightstick, not plaintiff's elbow. Dkt. #42, p. 9. However, at no time during the disciplinary hearing did plaintiff allege that CO Buth was injured by a nightstick. Rather, plaintiff requested the medical reports to prove that CO Buth was not hit by plaintiff. B13. It is unclear, however, how the medical reports would establish that fact. Moreover, to the extent that plaintiff sought the medical records to demonstrate the height differential between him and CO Buth, plaintiff did establish that CO Buth is 6'5" and that he was approximately 5'8". B44. Accordingly, CHO Breckon's denial of this request was rational.

Testimony From Other Non-Witnesses to the Incident

Plaintiff complains that the CHO deprived him of his constitutional rights when he refused to allow further questioning of CO Johnson. Dkt. #42, p. 2. However, the additional questions plaintiff sought to ask CO Johnson went to plaintiff's claim of assault by the corrections officers, not CO Buth's claim of assault by plaintiff. Once it was determined that he did not witness the alleged assault on CO Buth, it was justifiable for CHO Breckon to preclude further questioning of CO Johnson, particularly given the number of witnesses who had already been called to testify. B25. Testimony from Sgt. Randall and the B-Yard Tower Officer regarding events which transpired in the yard prior to the alleged incident was also properly excluded as irrelevant to the charges contained in the misbehavior report.

Failure to Identify CO Carriero

Plaintiff alleges that the CHO purposefully failed to discern that his request for Officer "Curello" referred to Officer Carriero. Dkt. #42, pp. 5-6. Given the number of witnesses produced at plaintiff's request and CHO Breckon's attempts to discover the identity of CO Carriero, e.g., producing CO Turello, the failure to discover and produce CO Carriero cannot be said to deny plaintiff's right to call witnesses in his defense. See Dixon v. Goord, 224 F. Supp.2d 739, 746 (S.D.N.Y. 2002) (inability to identify corrections officer based upon plaintiff's description constitutes logical reason for failing to produce as a witness).

Failure to Cuff in Front with a Waist Chain

Plaintiff argues that it was an abuse of power for the CHO to refuse to order removal of plaintiff's handcuffs from behind his back during the course of his disciplinary hearing. Dkt. #42, pp. 11-12. Because plaintiff does not have a constitutional right to be present at his disciplinary hearing, he cannot claim a right to be unencumbered by mechanical restraints if physically present during his disciplinary hearing. See Bogle v. Murphy, 2003 WL 22384792 (W.D.N.Y. Sept. 9, 2003) ("since Wolff does not positively grant an inmate the right to be present at his hearing, such a due process right cannot be implied."); see also Brown v. Coughlin, 1995 WL 643349, at *3 (W.D.N.Y. Oct. 13, 1995) (concluding that "plaintiff does not have a liberty interest in being unencumbered by mechanical restraints during his exercise period."). Plaintiff does not dispute that he was subject to a valid restraint order. See Plaintiff's Exhibit C. Moreover, the transcript does not suggest that the mechanical restraints interfered with his ability to call witnesses and present evidence or otherwise participate in the disciplinary hearing.

Sentencing Guidelines

Plaintiff argues that his punishment exceeded DOCS "Guidelines for Disciplinary Dispositions." Dkt. #42, p. 12. Plaintiff also argues that the CHO violated DOCS protocol by using his prior disciplinary record to infer guilt of the instant charge. Dkt. #42, pp. 12-13.

Contrary to plaintiff's allegations, the transcript does not suggest that the CHO used plaintiff's prior disciplinary record to infer his guilt on the instant charge. The evidence was sufficient to demonstrate that plaintiff assaulted CO Buth, and the only mention of plaintiff's prior disciplinary record was with respect to the appropriate punishment, i.e., that because a sentence of 13 months for assault on an inmate failed to deter further assaults by plaintiff, and because this assault was on a corrections officer, a more severe punishment was warranted.

With respect to the length of the sentence, plaintiff has no federal constitutional right to a sentence in accordance with DOCS Sentencing Guidelines inasmuch as "the failure to follow a DOCS Directive or prison regulation does not give rise to a federal constitutional claim." Rivera v. Wohlrab, 232 F. Supp.2d 117, 123 (S.D.N.Y. 2002). "Absent a clear showing of gross abuse, a prison authority's judgment in ordering confinement should prevail and will not give rise to a cause of action under section 1983." Id. at 125, citing Anderson v. Coughlin, 700 F.2d 37, 44 (2d Cir. 1982). In any event, "[a]t a Tier III hearing, the maximum penalty that may be imposed is keeplock or SHU confinement for a period of time limited only by the length of the inmate's sentence, as well as a loss of good time credit and privileges." Jackson v. Johnson, 15 F.Supp.2d 341, 355 (S.D.N.Y. 1998).

Impartiality of Hearing Officer

Plaintiff alleges that the CHO demonstrated his partiality by refusing to allow him to present evidence with respect to his claim of retaliation. Dkt. #42, p. 9. Plaintiff also complains that the CHO had predetermined plaintiff's guilt. Dkt. #42, pp. 14-15.

"An inmate subject to a disciplinary hearing is entitled to an impartial hearing officer." Allen v. Cuomo, 100 F.3d 253, 259 (2d Cir. 1996); see Wolff, 418 U.S. at 570-71; Russell v. Selsky, 35 F.3d 55, 59 (2d Cir. 1994). An impartial hearing officer "is one who, inter alia, does not prejudge the evidence and who cannot say . . . how he would assess evidence he has not yet seen." Patterson v. Coughlin, 905 F.2d 564, 569-70 (2d Cir. 1990); see Francis, 891 F.2d at 46 ("it would be improper for prison officials to decide the disposition of a case before it was heard").

It is well recognized, however, "that prison disciplinary hearing officers are not held to the same standard of neutrality as adjudicators in other contexts." Allen, 100 F.3d at 259; see Francis, 891 F.2d at 46 ("Because of the special characteristics of the prison environment, it is permissible for the impartiality of such officials to be encumbered by various conflicts of interest that, in other contexts, would be adjudged of sufficient magnitude to violate due process."). For example, "[t]he degree of impartiality required of prison officials does not rise to the level of that required of judges generally." Allen, 100 F.3d at 259; see Francis, 891 F.2d at 46.

A review of the hearing transcript does not establish that the CHO was partial. To the contrary, the CHO permitted plaintiff to call numerous witnesses, accepted plaintiff's allegation that he had made complaints against corrections officers during his prior stay at Attica and that those complaints resulted in an Inspector General's investigation, and permitted plaintiff to argue that the misbehavior report was fabricated in retaliation for these prior complaints. The CHO's comments with respect to evidence already presented does not demonstrate prejudice, and the CHO's comments with respect to plaintiff's potential motive for striking CO Buth was hypothetical and in response to plaintiff's claimed lack of motive.

CONCLUSION

For the foregoing reasons, defendant Breckon's motion for summary judgment (Dkt. #33), is GRANTED and plaintiff's motion for summary judgment against defendant Breckon (Dkt. #61), is DENIED. The Clerk of the Court is directed to enter judgment in favor of defendant Breckon.

The Court hereby certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith, and leave to appeal to the Court of Appeals as a poor person is denied. Coppedge v. United States, 369 U.S. 438 (1962). Further requests to proceed on appeal as a poor person should be directed, on motion, to the United States Court of Appeals for the Second Circuit, in accordance with Rule 24 of the Federal Rules of Appellate Procedure.

SO ORDERED.


Summaries of

Claudio v. Herbert

United States District Court, W.D. New York
Feb 10, 2005
01-CV-0120Sr (W.D.N.Y. Feb. 10, 2005)
Case details for

Claudio v. Herbert

Case Details

Full title:ANGEL CLAUDIO, Plaintiff, v. VICTOR T. HERBERT, T. BRECKON, J. KEENAN, N…

Court:United States District Court, W.D. New York

Date published: Feb 10, 2005

Citations

01-CV-0120Sr (W.D.N.Y. Feb. 10, 2005)

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