Opinion
01 Civ. 9590 (KMW)(FM).
June 21, 2004
REPORT AND RECOMMENDATION TO THE HONORABLE KIMBA M. WOOD
In this action, pro se plaintiff Eric McCarthy ("McCarthy") seeks damages against two correction officials — defendants Yost and Carey — arising out of his 207-day confinement in the Segregated Housing Unit ("SHU") at the Mid-State Correctional Facility ("Mid-State") following his alleged participation in organizing an inmate strike at the Green Haven Correctional Facility ("Green Haven"). McCarthy's amended complaint was the subject of a Report and Recommendation ("Report") that I issued in February 2003, and Your Honor's August 27, 2003 Order ("Order") regarding that Report.
Pursuant to the Order, only a handful of McCarthy's original claims remain in this suit. The defendants have now moved, pursuant to Rule 56 of the Federal Rules of Civil Procedure, for summary judgment with respect to those claims, and McCarthy has submitted an affidavit in opposition.
For the reasons set forth below, the defendants' motion should be granted with respect to McCarthy's fourth claim for relief, in which he alleges that he was denied effective employee assistance in connection with his Tier III disciplinary hearing, but denied in all other respects.
I. Relevant Facts
The factual background giving rise to this action was discussed in considerable detail in the Report and Order, which are incorporated herein by reference. Accordingly, the following discussion sets forth only the facts necessary to resolve the defendants' present motion. Unless otherwise indicated, those facts are undisputed.
The defendants' motion papers advised McCarthy of the need to serve a counterstatement of facts pursuant to Local Civil Rule 56.1. (See Docket Nos. 41, 43). Despite that admonition, McCarthy did not comply.
In September 1999, officials of the New York State Department of Correctional Services ("DOCS") learned that certain inmates were planning a coordinated inmate work stoppage which was to begin on January 1, 2000 ("Y2K Strike"). (Carey Aff. ¶¶ 9-10). At the time, McCarthy was an inmate at Green Haven and a member of the "Bloods" youth gang. (McCarthy Dep. ("Dep.") at 19).
On November 9, 1999, Gwen Schneider ("Schneider"), who was then a corrections lieutenant at Green Haven, interviewed an inmate informant who was a member of the Bloods and who had provided credible and reliable information to prison officials in the past. (Schneider Aff. ¶¶ 17, B22). The informant advised Schneider that McCarthy's role in the proposed Y2K Strike was to assign inmates to carry out assaults on other inmates who cooperated with the DOCS investigation. (See id. ¶ B23). According to the informant, McCarthy also wanted to assign an inmate to attack Schneider. (Id. ¶ B24). Finally, the informant indicated that his life would be at risk if his role in the investigation became known. (Id. ¶ B25).
The paragraphs of the Schneider Affidavit are numbered incorrectly, with paragraph numbers 22 through 27 and 31 repeated. (There also is no paragraph number 30). Citations to paragraph numbers preceded by the letter "B" refer to the second paragraph bearing that number.
The Schneider Affidavit actually refers to inmates who "corroborated" with the investigation. (Id.). In context, it is clear that this is a typographical error.
Schneider's summary of the informant interview is annexed to her affidavit as Exhibit A, but it contains numerous redactions to "protect the identity of the informant." (See id. at 5-6 nn. 1-5 Ex. A; see also id. ¶ 29 ("Disclosing exactly where confidential information was obtained could lead to the disclosure of the confidential informant.")).
Correction Officer Glen Williams ("Williams") also participated in interviews of inmate informants in connection with the Y2K Strike. (Williams Aff. ¶¶ 6-8, 10). In November 1999, Williams received information indicating that McCarthy was assigned the "hit" of inmates who provided information to the Green Haven security staff. (Id. ¶ 19). In the course of his investigation, Williams also was advised that McCarthy was responsible for a knife attack on another inmate, although he "tricked security staff into believing he was on the crime scene 'breaking up a knife fight.'" (Id. Ex. A) (block capitalization omitted).
Schneider and Williams were both members of the Crisis Intervention Unit ("CIU") at Green Haven. (Schneider Aff. ¶ 7; Williams Aff. ¶ 5). The CIU is a specially-trained unit that investigates incidents that threaten institutional security or safety. (Schneider Aff. ¶ 8; Williams Aff. ¶ 7). By memorandum dated November 30, 1999, the CIU requested the transfer of several inmates, including McCarthy, because the CIU feared that he "would emerge and be looked upon by [the inmates] for leadership" and "would deliver" in the event of a work stoppage at the facility. (Williams Aff. Ex. A at 3).
The following month, on December 24, 1999, Carey charged in an Inmate Misbehavior Report ("IMR") that McCarthy had violated DOCS Rule 104.12, (codified at N.Y. Comp. Code R. Regs., tit. 7, § 270.2(B)(5)(iii)), by "urging other inmates to participate in a strike." (McCaffrey Decl. Ex. D).
After preparing the IMR, Casey forwarded it to lieutenant Harry Plowden ("Plowden"), an officer with nearly thirty years of DOCS experience, who served as a review officer. (Carey Aff. ¶ 32; Plowden Aff. ¶¶ 2, 4, 8). The review officer has the authority to dismiss an IMR or require revisions. (Carey Aff. ¶ 33; Plowden Aff. ¶ 6 (citing N.Y. Comp. Code R. Regs, tit. 7, § 251-2.2(c)). Plowden reviewed the draft IMR and two memoranda prepared by Williams and Schneider concerning confidential information. (Plowden Aff. ¶¶ 8, 11). Balancing the need to provide inmates with adequate notice of the charges against the institutional need to protect confidential informants, Plowden determined that the IMR was adequate and that it should be addressed at a Tier III hearing. (Id. ¶¶ 11-19). Thereafter, the IMR was served on McCarthy.
Following McCarthy's transfer to Mid-State on December 25, 1999, Yost was assigned to serve as the hearing officer. (McCaffrey Decl. Ex. B; Yost Aff. ¶ 29). The Tier III disciplinary hearing then commenced before Yost on December 30, 1999. (McCaffrey Decl. Ex. C).
There was some confusion in the record on the prior motion to dismiss as to Yost's gender. The transcript of the Tier III hearing ("H.") makes clear that Yost is a woman. (H. 35).
At the outset of the hearing, McCarthy complained that Sergeant Miranda ("Sgt. Miranda") (misidentified in the hearing transcript as "Moranda"), his employee assistant, had provided him with the text of the DOCS rules regarding inmate behavior, but not the case annotations that he needed for his defense. (H. 3-5). Accordingly, Yost adjourned the hearing so that McCarthy could be given the missing materials. (Id. at 5-8). Although McCarthy contended in his Supplemental Appeal to SHU Director Selsky that Sgt. Miranda did not inform him of the results of the three witness interviews that he had requested, (see Ans. to Defs.' Interrogs. Ex. 4 at 9-10), he failed to voice this complaint at the hearing. (See, e.g., id. at 8 ("Hearing Officer: Anything further at this point? Inmate McCarthy: No ma'am.")).
The Tier III hearing resumed on the morning of January 7, 2000, by which time McCarthy had been given an opportunity to review the annotations. (See H. 8-9). Once the hearing was underway, McCarthy complained that the IMR was insufficiently specific, but he once again failed to assert that Sgt. Miranda had provided ineffective assistance because he did not advise McCarthy of the results of his investigation. In any event, all three of the witnesses that McCarthy had asked to have interviewed were called (by telephone) as witnesses at the hearing. (See id. at 33-38 (Carey), 40-42 (Shalo), and 50-52 (Purcell); Report at 4, 13).
Based on that review, McCarthy cited Bryant v. Coughlin, 569 N.Y.S.2d 582 (1991) (mistakenly transcribed as Brian v. Coughlin), and Davis v. Coughlin, 607 N.Y.S.2d 172 (3d Dep't 1994), in support of his claim that the IMR failed to advise him adequately of the charge against him. (H. 23-24, 28). Both cases involved Article 78 proceedings in which the disciplinary charges against the inmates were found to be insufficiently specific. Notwithstanding his claim that the IMR charge was inadequate, McCarthy understood that the offense related to the rumored Y2K strike. (See Dep. at 61). Indeed, when he confronted Carey prior to his transfer, he was advised that the misconduct charged in the IMR took place in the cell block, the mess hall and the yard. (See id. at 72).
Defendant Carey (misidentified in the hearing transcript as "D. Kerry") was McCarthy's first witness. He testified that McCarthy first came to his attention in November, and that he had determined by December 24, 1999, that he had "enough information to charge . . . McCarthy with rule violation 104.12 as a result of an ongoing investigation at [Green Haven] for work stoppage." (H. 35). Carey further testified that McCarthy had been identified as a member of an "unauthorized gang" who was threatening violent action against other inmates if they failed to comply with the planned work stoppage. (Id. at 35-36). Carey declined to provide further details, stating that he could not do so "without giving up . . . confidential information." (Id. at 37).
McCarthy's second witness was Sergeant Shalo (misidentified in the Report as Sergeant Shallow). Shalo testified that, while McCarthy was at Green Haven, he had "never given [Sergeant Shalo] a direct problem," although he also noted that his observations of McCarthy "in the yard" were limited. (Id. at 41-42).
Correction Officer Purcell (misidentified in the Report as "Percell") was McCarthy's final witness. Purcell testified that he never had a problem during the period that McCarthy was assigned to the "H Block" at Green Haven, nor could he recall McCarthy ever threatening anyone. (Id. at 51-52).
In addition to hearing McCarthy's witnesses, Yost reviewed a "confidential tape" containing "confidential information" which she told McCarthy could not be divulged to him. (Id. at 13, 32). Indeed, Yost declined to tell McCarthy whether the confidential information came from an inmate, noting that her responsibility as a hearing officer was to determine that, regardless of its source, the information was "credible." (Id. at 14).
A copy of the transcript of that separate proceeding is annexed to the Yost Affidavit as Exhibit A.
At the conclusion of the testimony of each of his witnesses, McCarthy signed a "witness interview form" acknowledging that the witness's testimony had been received. (See id. at 38-39, 43, 53). McCarthy also signed forms indicating that Williams and Schneider (misidentified in the hearing transcript as "Snyder") had testified via speakerphone regarding confidential information that was provided to Yost in memo form and was "part of the hearing packet." (Id. at 54-55). McCarthy commented, however, that he did not know Williams. (Id. at 54).
Immediately after McCarthy signed these last forms, Yost found him guilty of the violation charged and sentenced him to 360 days in the SHU (with credit for his time there since December 24, 1999), and loss of package, commissary, and telephone privileges for the same period. (Id. at 55-56). Yost noted that she was imposing a stiff sentence to send McCarthy the "message that this type of activity will not be tolerated." (Id. at 56).
McCarthy served 207 days in the SHU before Yost's adjudication of guilt was reversed by Director Selsky on the ground that the IMR did not provide sufficient information for McCarthy to defend himself. (Dep. at 76; McCaffrey Decl. Ex. G). According to McCarthy, while he was in the SHU, he was confined to his cell for approximately 23 hours per day, had to relinquish any property (such as a radio or television), could not work or get paid, was unable to receive telephone calls or packages, had access to only limited programs, and was allowed visitors for only one hour each week. (Id. at 76-77, 80, 84-85). He conceded, however, that he rarely received visits from his family when he was in the general population. (Id. at 77). McCarthy also observed that his access to the law library was limited (although he did not recall filing a grievance regarding that alleged deprivation). (Id. at 77-78). Finally, McCarthy testified that he was double-bunked in the SHU, with a resulting loss of privacy. (Id. at 78-79, 82-83).
McCarthy testified at his deposition that certain of these restrictions are lifted in stages for good behavior. (Dep. at 81). At Level One, the inmate can receive ten to fifteen pictures, a few letters, approximately ten magazines and books, and a pair of slippers. (Id. at 86). At Level Two, among other benefits, the inmate receives ten extra magazines and fifteen extra pictures. (See id.). At Level Three, there are additional enhancements. (Id.).
II. Discussion
A. Summary Judgment
Summary judgment is appropriate only when "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). The moving party has the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a genuine issue of material fact."Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the court concludes that "the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial,'" and summary judgment must be granted. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 289 (1968)).
In deciding a motion for summary judgment, the court must "view the evidence in the light most favorable to the party against whom summary judgment is sought and . . . draw all permissible inferences in favor of that party." Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir. 1997). The Court must accept as true the non-moving party's evidence, if supported by affidavits or other evidentiary material. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986). Thus, "[t]he court's function is not to resolve disputed issues of fact but only to determine whether there is a genuine issue of material fact to be tried." Fischl, 128 F.3d at 55; accord Anderson, 477 U.S. at 247-49. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50 (citing Cities Serv. Co., 391 U.S. at 290; Dombrowski v. Eastland, 387 U.S. 82 (1967)).
Although the same summary judgment rules apply to a party proceeding pro se, special latitude is appropriate to ensure that a meritorious claim is not foreclosed simply because the papers submitted in opposition to the motion are inartfully worded.See Morris v. Citibank, N.A., No. 97 Civ. 2127 (JGK), 1998 WL 386175, at *2 (S.D.N.Y. July 8, 1998); see also Estelle v. Gamble, 429 U.S. 97, 106 (1976) (pro se complaint should be held to less stringent standard than formal pleadings drafted by counsel); McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (pro se pleadings should be read liberally and interpreted to "raise the strongest arguments they suggest") (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). By the same token, however, "a pro se party's 'bald assertion,' completely unsupported by evidence, is not sufficient to overcome a motion for summary judgment." Odom v. Keane, No. 95 Civ. 9941 (SS), 1997 WL 576088, at *3 (S.D.N.Y. Sept. 17, 1997) (quoting Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)). Accord Jorgensen v. Careers BMG Music Publ'g, No. 01 Civ. 0357 (LAP), 2002 WL 1492123, at *3 (S.D.N.Y. July 11, 2002).
B. Section 1983
Section 1983 provides a procedure for persons alleging a constitutional deprivation to bring a claim, but the statute itself creates no substantive rights. Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993). Accordingly, to state a claim under Section 1983, a plaintiff must allege that a defendant acting under color of state law has deprived him of a right, privilege, or immunity guaranteed by the United States Constitution. 42 U.S.C. § 1983; Barnes v. City of New York, No. 96 CV 2702 (SJ), 1998 WL 19485, at *4 (E.D.N.Y. Jan. 20, 1998). Here, there does not seem to be any dispute that the defendants both were employees of the New York State Department of Correctional Services acting under color of state law. The remaining question is whether McCarthy can establish that they violated his constitutional rights.
C. Alleged Constitutional Violations
Pursuant to the Order, only three claims for relief remain in this lawsuit: (1) that Carey and Yost gave McCarthy inadequate notice of the infraction charged; (2) that Sgt. Miranda provided McCarthy with inadequate employee assistance; and (3) that McCarthy did not have an opportunity to conduct a meaningful defense. In Sandin v. O'Conner, 515 U.S. 472, 484 (1995), the Supreme Court held that the first showing that an inmate alleging such a due process violation must make is that the inmate had a protected liberty interest. This, in turn, requires the inmate to show that the punishment imposed gave rise to an "atypical and significant hardship . . . in relation to the ordinary incidents of prison life." Id.
In the Second Circuit, there is no bright-line rule that establishes when a period of SHU confinement amounts to the deprivation of a liberty interest. See, e.g., Sims v. Artuz, 230 F.3d 14, 23 (2d Cir. 2000); Colon v. Howard, 215 F.3d 227, 232-34 (2d Cir. 2000). Nevertheless, the Court of Appeals has cautioned district judges that in cases where the period of confinement ranges between 101 and 305 days, a detailed record should be developed to facilitate appellate review.Colon, 215 F.3d at 232. This requires consideration not only of the duration, but also of the conditions of confinement. See Ortiz v. McBride, 323 F.3d 191, 195 (2d Cir. 2003).
In their motion papers, the defendants seek to minimize the differences between SHU confinement and confinement in the general population. (See Defs.' Mem. of L. at 13-14). The fact remains, however, that for 207 days, among other deprivations, McCarthy was confined to his cell for approximately 23 hours per day, did not have access to much of his personal property, lacked telephone access, and could not participate in institutional work programs. A reasonable juror could certainly find that McCarthy's extended SHU confinement under these conditions gave rise to a liberty interest. See Welch v. Bartlett, 196 F.3d 389, 393 (2d Cir. 1999) (vacating grant of summary judgment in case involving SHU confinement of only ninety days and noting that there is a "great" difference between confinement in a cell for one half of the day in general population and confinement in a SHU cell for 23 hours per day).
Because McCarthy may be able to establish at trial that the hardship to which he was subjected gave rise to a liberty interest, the defendants are not entitled to summary judgment on any of his claims unless they can show that they did not "deprive him of that interest as a result of insufficient process." See Giano v. Selsky, 238 F.3d 223, 225 (2d Cir. 2001). I therefore will turn to each of the procedural defects that McCarthy alleges in his amended complaint.
1. Inadequate Notice
The first due process violation that McCarthy alleges is that the IMR prepared by Carey did not give him adequate notice of the offense charged. In that regard, my prior Report noted that an inmate has "no general constitutional right to be free from being falsely accused in a misbehavior report." (Report at 8 (quotingBoddie v. Schnieder, 105 F.3d 857, 862 (2d Cir. 1997)). On that basis, I recommended that McCarthy's claim against Carey arising out of the alleged inadequacy of the IMR be dismissed because, "if Carey's filing of an intentionally false report would not be actionable, his filing of an insufficiently specific report against McCarthy could not possibly give rise to a due process violation." (Id.). In the Order, Your Honor rejected this reasoning, stating that the IMR failed to provide information as to "what [McCarthy] was accused of having said, to whom, where or when" and that without this information he "could not meaningfully marshal evidence in his defense." (Order at 9-10).
Your Honor therefore denied the defendants' motion to dismiss McCarthy's first claim for relief and his sixth claim for relief insofar as it alleged a Fourteenth Amendment due process violation. Your Honor reserved decision as to whether "greater specificity in the [IMR] would have jeopardized the safety of the confidential informants," noting that the Court lacked sufficient information to assess whether that was true. (Id. at 10).
As my Report states, when prison officials propose to deprive an inmate of a liberty interest, the inmate has certain rights, including the right to receive a notice of the charges against him. (Report at 14). That notice must be "more than a mere formality" and must be sufficiently specific that the inmate can prepare a defense and "not be made to explain away vague charges." (Id. (quoting Taylor v. Rodriguez, 238 F.3d 188, 192-93 (2d Cir. 2001)). See also Hewitt v. Helms, 459 U.S. 460, 476 (1983) (an inmate transferred to administrative segregation because he presents a security risk while an investigation of alleged misconduct is underway is entitled to "some notice of the charges against him and an opportunity to present his views").
In Tellier v. Scott, No. 94 Civ. 3459 (KMW), 2004 WL 224499 (S.D.N.Y. Feb. 5, 2004), Your Honor had an opportunity to address the sufficiency of the notice given to an inmate in the context of the federal prison system. In that case, the notice of the reason why the plaintiff-inmate was being placed in administrative segregation even before a misconduct hearing was held "state[d] simply 'high security/escape risk.'" Id. at *6. As Your Honor observed, many factors contributed to the decision of officials at the Metropolitan Correctional Center to place the plaintiff in administrative segregation, including his "recent history of escape attempts, the grave charges and potential sentence (life imprisonment) that he was facing, and the fact that he had been previously designated a high security inmate in a maximum security state penitentiary." Id. at *2. The inmate denied receiving the notice, but conceded that certain of the factors that the authorities had considered also "might have run through [his] mind." Id. at *6 (brackets in original). Your Honor concluded that, assuming the notice was served, "a genuine issue of material fact still exist[ed] with respect to whether the notice was so vague as to render plaintiff actually unable to prepare a defense to the charges against him." Id. Accordingly, summary judgment on the issue of notice was denied.
Here, the defendants have introduced evidence that one or more informants either were or perceived that they would be at risk if McCarthy was given an IMR which was sufficiently detailed that he might be able to determine the source(s) of the confidential information used against him. (See Schneider Aff. Ex. A (reflecting informant's statement that McCarthy's role in the Y2K Strike was to arrange "hits" and that "[a]nyone who is considered a snitch is to get hit"); Williams Aff. Ex. A (containing informant information that McCarthy is a "RUTHLESS BLOOD LEADER" involved in numerous inmate stabbings)). As in Tellier, a reasonable juror might find that, despite McCarthy's protestations, he in fact had sufficient information to prepare a defense. On the other hand, such a juror could also conclude that greater detail could have been furnished without jeopardizing inmate security. This is particularly true because McCarthy was not accused of an isolated act of misconduct as to which there was only one witness, but a continuing course of conduct, as to which more than one inmate presumably had knowledge. (See H. 10-11) (remarks of Yost indicating that McCarthy was charged with a continuing offense not amenable to alibi witnesses). In these circumstances, the adequacy of the notice that McCarthy received is not an issue that can be resolved through summary judgment.
The defendants' papers also note that Carey was not the final arbiter of the sufficiency of the IMR. Instead, pursuant to N.Y. Comp. Code R. Regs., tit. 7 § 251-2.2(b)-(c), the IMR draft was reviewed by Plowden, an experienced corrections official, who found that it was sufficient in light of the need to protect the identity of the informant (or informants). (Plowden Aff. ¶¶ 4, 6, 19). The fact that a second official also reviewed the proposed charge does not exonerate Carey. Rather, to the extent that Carey drafted an inadequate IMR, Plowden's involvement simply indicates that there is an additional official who might have been accused of violating McCarthy's due process right to receive adequate notice of the specific misconduct that gave rise to the charge.
2. Inadequate Employee Assistance
In his amended complaint, McCarthy contends that Sgt. Miranda's assistance was insufficient, but he does not provide any details supporting his claim. (See Am. Compl. ¶ 17) . His Supplemental Appeal to Selsky, however, focused on two requests that McCarthy made. As set forth in an "Assistant Form" which is part of the summary judgment motion papers, McCarthy requested that a copy of "7 NYCRR" be provided to him and that Carey, "Percell," and "Shallow" be interviewed. (See McCaffrey Decl. Ex. E). In the Supplemental Appeal, McCarthy objected that he was "never given the annotations." (Ans. to Defs.' Interrog. Ex. 4 at 9-10). As Your Honor observed, it also was unclear whether Sgt. Miranda reported the results of his witness interviews to McCarthy prior to the hearing. (See Order at 14).
The Court has now been provided with the hearing transcript, which establishes that the hearing was adjourned for a full week so that McCarthy could receive and review the annotations that he had requested. Accordingly, because McCarthy received the annotations before Yost began to consider the merits of the IMR, McCarthy plainly did not suffer any prejudice — much less a deprivation of his constitutional rights — by reason of their delayed production.
The only other aspect of McCarthy's employee assistance claim relates to the interviews of his proposed witnesses. During the first session of the Tier III hearing, Yost suggested that McCarthy had not listed any hearing witnesses and had requested only that Carey be interviewed. (H. 7). McCarthy responded, "My witnesses are right there. Those are my witnesses." (Id.). It appears that Yost and McCarthy were both referring to an "Assistant Form," which contained no information under a heading requesting the names of inmates who were to be "interviewed as potential witnesses," but listed Carey, "Percell" and "Shallow" as "other persons to be interviewed as potential witnesses." (See McCaffrey Decl. Ex. E). Notwithstanding McCarthy's protestations to the contrary in his Supplemental Appeal, Sgt. Miranda and McCarthy both signed the Assistant Form on December 28, 1999, to confirm that the Sergeant had "interviewed witnesses and assisted as requested and reported the results to the inmate charged." (Id.).
When the hearing resumed on January 7th, McCarthy requested a copy of the "logbook" for December 24, 1999. (H. 10). He also stated that he needed to know the specific date and time the offense occurred so that he could "appoint" the proper witnesses. (Id. at 12). As this discussion with Yost progressed, McCarthy identified three witnesses — Carey, Purcell and Shalo — each of whom was called as a witness at the hearing. (See id. at 12, 15-16, 20). McCarthy also continued to protest the lack of specificity in the IMR, (see id. at 23-29), but he never voiced any objection that Sgt. Miranda had failed to conduct prehearing interviews and report back to him. Finally, McCarthy complained about his inability to learn any further details about the confidential information that had been reported to Yost. (Id. at 30, 44).
In response, Yost reminded McCarthy that the charge against him grew out of an ongoing investigation rather than a discrete incident. (H. 13).
After the three witnesses were called, McCarthy stated that he had no further witnesses to proffer. (Id. at 53). When he was invited to set forth any "procedural objections" that he had, McCarthy spoke only of a case citation that he had "back in [his cell]." (Id.). Once again, he did not make any mention of Sgt. Miranda's alleged failure to interview witnesses and report back to him.
As noted in my original Report, an inmate who is unable to investigate the facts leading to a misbehavior report is entitled to assistance. (See Report at 12 (citing Silva v. Casey, 992 F.2d 20, 22 (2d Cir. 1993)). In New York State, that assistance takes the form of a DOCS employee who is selected from an established list to interview witnesses and perform other tasks that the inmate cannot undertake. (Id. (citing N.Y. Comp. Code R. Regs, tit. 7, §§ 251-4.1(a)(4), 251-4.2)).
Procedural defects during a prisoner's disciplinary hearing are subject to harmless error analysis. See Powell v. Coughlin, 953 F.2d 744, 750 (S.D.N.Y. 1991) ("If a person may be convicted and obliged to serve a substantial prison sentence notwithstanding a constitutional error determined to be harmless, . . . surely the conditions of confinement of a sentenced prisoner may be made temporarily more severe as discipline for a prison rules infraction despite a harmless error in adjudicating the violation."). In his Supplemental Appeal, McCarthy alleged that Sgt. Miranda never informed him of the results of any interviews. (Ans. to Defs.' Interrogs. Ex. 4 at 9-10). Nonetheless, because each of McCarthy's potential witnesses testified, and because there is no claim of surprise, Sgt. Miranda's alleged failure to report back to McCarthy, even if established, would at best be harmless error. See Louis v. Ricks, No. 01 Civ. 9368 (DAB)(AJP), 2002 WL 31051633, at *15 (S.D.N.Y. Sept. 13, 2002) (Report Rec. of Peck, Mag. J.) (since witness testified that inmate did not attack him, the alleged failure to interview the witness prior to the hearing was "at most harmless error"). Moreover, McCarthy clearly waived any objection to Sgt. Miranda's allegedly deficient reporting by failing to place it on the record during the disciplinary hearing despite Yost's invitation to do so before the record closed.See Bedoya v. Coughlin, 91 F.3d 349, 352 (2d Cir. 1996) (inmate waived claim by "failing either to reiterate his request for [the] testimony when given the opportunity or to object to the close of the hearing); Cox v. Malone, 199 F. Supp.2d 135, 144 (S.D.N.Y. 2002) (citing Bedoya).
3. Lack of Opportunity to Conduct a Meaningful Defense
In his fifth claim for relief, McCarthy alleges that he was deprived of a meaningful opportunity to defend himself and present evidence by virtue of the inadequate notice that he received. (See Order at 4, 9). Since there is a material factual issue as to the adequacy of the IMR served upon McCarthy, the defendants are not entitled to summary judgment with respect to this claim.
D. Qualified Immunity
In their motion, the defendants renew their prior application to dismiss McCarthy's claims on the basis of qualified immunity. "Qualified immunity is an entitlement not to stand trial or face the other burdens of litigation." Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (quoting Saucier v. Katz, 533 U.S. 194, 200 (2001)) (internal citations omitted). The doctrine of qualified immunity "shields public officials from liability for civil damages if their actions were objectively reasonable, as evaluated in the context of legal rules that were 'clearly established' at the time." Poe v. Leonard, 282 F.3d 123, 132 (2d Cir. 2002). Accord African Trade Info. Ctr., Inc. v. Abromaitis, 294 F.3d 355, 359 (2d Cir. 2002) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
In evaluating a motion for summary judgment based on qualified immunity, a court must engage in a two-part analysis. As a threshold matter, the court must determine whether the facts taken in the light most favorable to the plaintiff indicate that the defendants' conduct violated a constitutional right.Saucier, 533 U.S. at 201. If the court determines that a violation occurred, it must consider whether the right in question was clearly established at the time of the violation. This requires that "[t]he contours of the right . . . be sufficiently clear that a reasonable official would understand what he is doing violates that right." Id. at 202.
As Your Honor noted in the Order, by 1999 it was clearly established that "a notice of violation of prison rules had to be sufficiently specific to permit the inmate to defend against th[e] specific charges." (Order at 11). Here, as noted above, there is a factual issue as to whether the information provided to McCarthy was sufficient. There also is a factual issue as to whether more information could have been provided without compromising the informant(s). The defendants are therefore not entitled to qualified immunity with respect to McCarthy's due process claims insofar as they are predicated on inadequate notice of the charges against him.
III. Conclusion
The defendants are entitled to summary judgment with respect to McCarthy's fourth claim for relief, which alleges that he received inadequate employee assistance from Sgt. Miranda. Because there are material factual issues, the defendants are not entitled to summary judgment with respect to McCarthy's first claim for relief, which charges that Carey and Yost gave him inadequate notice of the charges against him, or McCarthy's fifth claim for relief insofar as it alleges a due process claim against Yost based upon the inadequacy of the IMR. Finally, the defendants are not entitled to qualified immunity.
IV. Notice of Procedure for Filing of Objections to this Report and Recommendation
The parties are hereby directed that if they have objections to this Report and Recommendation, they must, within ten days from today, make them in writing, file them with the Clerk of the Court, and send copies to the chambers of the Honorable Kimba M. Wood and to the chambers of the undersigned, at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b). Any requests for an extension of time for filing objections must be directed to Judge Wood. The failure to file timely objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b).