Opinion
01 Civ. 8995 (RCC) (KNF)
February 27, 2003
REPORT and RECOMMENDATION
TO THE HONORABLE RICHARD C. CASEY, UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
Plaintiff Prince Pilgrim ("Pilgrim") brought this action pro se, pursuant to 42 U.S.C. § 1983. Pilgrim alleges that rights secured to him by the First, Fifth, Eighth and Fourteenth Amendments to the Constitution were violated by defendants Corrections Officer David Luther ("Luther"), Corrections Sergeant Edward J. Vaughn, ("Vaughn"), and First Deputy Superintendent Joseph T. Smith ("Smith"), all of whom were employed at the Sing Sing Correctional Facility ("Sing Sing") at all times relevant to the instant action. Pilgrim alleges that as a result of the misconduct he ascribes to the defendants, he received disciplinary penalties, including confinement in the facility's Special Housing Unit ("SHU"), that were excessively harsh and atypical of the deprivation endured by prisoners as an ordinary incident of prison life.
Before the Court is defendants' motion to dismiss the complaint, made pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The defendants allege that plaintiff has failed to state a claim upon which relief may be granted. Alteratively, the defendants seek summary judgment, pursuant to Fed.R.Civ.P. 56. Plaintiff opposes the motion; it is addressed below.
The Court has not considered matters outside the pleading; accordingly, Fed.R.Civ.P. 56 has not been applied in analyzing the motion.
II. BACKGROUND
On September 14, 1999, while confined at Sing Sing Correctional Facility, plaintiff was placed in administrative segregation. Pilgrim contends that, the next day, after he was placed in a cell located in an isolated section of the facility's SHU, an Inmate Misbehavior Report ("IMR"), prepared by Luther, was delivered to him. Plaintiff alleges that the genesis of the IMR was information communicated to prison personnel by an inmate who was acting as a confidential informant. Plaintiff maintains that, based upon the information received from the confidential informant, prison personnel searched the cell to which he had been assigned immediately prior to being placed in the SHU. During that search, three documents entitled "Wake-Up!" were seized by Luther.The defendants contend that the seized documents urged prisoners to consider several questions, among them the following: "Why should we program or work?" "What do we get in return?" "Why should we be the raw materials in the DOCS prison industrial corporation which only serves the interests of politicians . . . and [provides] jobs for rural northern New Yorkers ["]. Furthermore, the defendants allege that Pilgrim was involved in distributing the seized documents to other prisoners in an effort to incite collective action by them that would disrupt the orderly administration of the facility at or about the turn of the century in January 2000.
Based on the confidential informant's disclosures and the material seized from Pilgrim's cell, plaintiff was accused of violating prison rules proscribing: (i) actions detrimental to the order of the facility; (ii) conduct that threatened violence; and (iii) conspiratorial conduct aimed at taking over a facility.
After receiving the IMR, plaintiff requested that a facility "employee assistant" be designated to help him prepare his defense to the disciplinary charges. Vaughn was designated to provide that assistance to Pilgrim. To prepare for the disciplinary hearing that would follow the service of the IMR, plaintiff asked Vaughn to obtain certain material for him: a) an unusual incident report; b) an inmate mass demonstration report; and c) all documents pertinent to the search of his cell. Pilgrim also recalls that he advised Vaughn that he wished to have two (2) facility employees and one inmate, Ernest Henry, appear as witnesses on his behalf at the disciplinary hearing.
On September 16, 1999, while conducting his rounds, Smith encountered Pilgrim in an isolated section of the SHU, where plaintiffs cell was located. Smith asked Pilgrim why he was isolated on the gallery by himself. Pilgrim alleges that he responded by showing Smith the IMF. Plaintiff recalls that Smith indicated that he would investigate the matter. Thereafter, Pilgrim was removed from the remote area of the SHU and placed in a cell near the other SHU prisoners.
On that same day, Vaughn informed Pilgrim that the documents he requested would be provided to him at the disciplinary hearing. However, Vaughn also informed plaintiff that Corrections Lieutenant Ferrell had advised him that the hearing officer assigned to preside at plaintiffs disciplinary hearing would make all determinations concerning the witnesses who would be allowed to testify at that proceeding.
On September 20, 1999, a Tier III disciplinary hearing was convened to address the charges made against Pilgrim in the above-referenced IMR. Smith was designated to serve as the hearing officer. Pilgrim entered a plea of not guilty to the charges set forth in the IMR. Thereafter, Pilgrim objected to Smith's serving as the hearing officer because Smith had "actual knowledge of the incident," had "read the disciplinary report and [had] informed plaintiff [that] he would investigate the matter." Pilgrim also objected when he learned that Smith had denied, as unnecessary, the request plaintiff made through Vaughn that: (a) certain documents be provided to him for his defense; and (b) three witnesses be summoned to the hearing to provide testimony on Pilgrim's behalf. The hearing was then adjourned. Pilgrim contends that the proceeding was adjourned to afford Smith an opportunity to consider the evidence provided against Pilgrim by the confidential informant.
"In the New York Prison System, Tier III disciplinary hearings, also known as Superintendent's hearings, are used for the review of the most serious violations of institutional rules." Walker v. Bates, 23 F.3d 652, 654 (2d Cir. 1994).
Pilgrim recalls that on the following day, September 21, 1999, he was approached by Corrections Sergeants Garner and McNamara. He alleges that they presented a proposal to him: if plaintiff would cooperate with prison officials, by identifying prisoners who were participating in activities designed to disrupt facility operations at the turn of the century, the sergeants would assist Pilgrim in having the charges being adjudicated at the Tier III disciplinary hearing dismissed. Pilgrim contends that he rejected the proposal; he informed the sergeants that he did not have any information that could assist them. Furthermore, Pilgrim advised the sergeants that he did not wish to assist prison officials by serving as an agent for them.
On September 22, 1999, when the Tier III disciplinary hearing resumed, plaintiff renewed his objections because he believed the proceeding was being conducted unfairly, in contravention of Department of Correctional Services Directive No. 4932. Consequently, he advised the hearing officer that he did not wish to participate in the proceeding. Pilgrim was then returned to his cell.
Pilgrim alleges that his Fifth and Fourteenth Amendment due process rights were violated because: (a) he did not get any assistance from Vaughn in preparing his defense to the disciplinary charges; and (b) he was not afforded a fair hearing, since the hearing officer, Smith, denied him access to documents and to witnesses needed for his defense and because Smith had previously investigated the disciplinary charges that were the subject of the hearing.
On September 24, 1999, Smith found Pilgrim not guilty of two of the charges made against him, but found him guilty of a third charge, "demonstration." Based upon that finding, Smith imposed the following penalties on Pilgrim: confinement in the SHU for 36 months, loss of all privileges for 36 months, loss of commissary for 36 months, loss of phone privileges for 36 months and loss of good time for 36 months. Plaintiff appealed from the determination rendered by the hearing officer. His appeal was successful to the extent that the term of confinement and the concomitant period of lost privileges and the period of lost good time were each reduced by 18 months.
Pilgrim contends that the penalty he received, due to Vaughn's failure to assist him and Smith's lack of impartiality, was violative of the Eighth Amendment's proscription against cruel and unusual punishment. Moreover, plaintiff maintains that the penalty was atypical of the deprivation endured by prisoners as an ordinary incident of prison life because while confined in the SHU, he is: required to remain in his cell 23 hours daily; permitted three ten-minute showers weekly; afforded one exercise period; and given less than the normal daily food allowance. In addition, Pilgrim alleges, hand and leg restraints are applied whenever he exits his cell to be escorted by corrections personnel or to attend religious services and the commissary. Pilgrim contends that the same restraints are applied when he receives visitors.
Plaintiff concedes that he wrote the "Wake Up" documents and that they were found in his cell. However, he maintains that no evidence exists that he distributed the documents to other prisoners. Pilgrim alleges that Luther's seizure of the "Wake-Up" documents from his cell violated his First Amendment right to free speech, since the contents of the documents were personal to him and not proscribed by any prison rules or regulations. Pilgrim also alleges that Luther violated his Fifth, Eighth and Fourteenth Amendment rights by relying upon false information from a confidential informant in preferring disciplinary charges against him that resulted in his confinement in the facility's SHU and his loss of privileges and good time for 18 months.
II. DISCUSSION
Failure to State a Claim
A court may dismiss an action pursuant to Fed.R.Civ.P. 12(b)(6) only if "it appears beyond doubt that [a] plaintiff can prove no set of facts in support of his claim which will entitle him to relief." Woodford v. Community Action Agency of Greene County, Inc., 239 F.3d 517, 526 (2d Cir. 2001) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99). In considering the motion, the court must take "as true the facts alleged in the complaint and draw all reasonable inferences in the plaintiffs favor." Jackson Nat'l Life Ins. v. Merrill Lynch Co., 32 F.3d 697, 700 (2d Cir. 1994). The court may consider all papers and exhibits appended to the complaint as well as any matters of which judicial notice may be taken. See Hirsch v. Arthur Andersen Co., 72 F.3d 1085, 1092 (2d Cir. 1995); Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir. 1993). "A complaint should not be dismissed simply because a plaintiff is unlikely to succeed on the merits." Baker v. Cuomo, 58 F.3d 814, 818 (2d Cir. 1995).
Section 1983 Claim
"To state a claim under § 1983, a plaintiff must allege that (1) the challenged conduct was attributable at least in part to a person who was acting under color of state law and (2) the conduct deprived the plaintiff of a right guaranteed under the Constitution of the United States." Snider v. Dylag, 188 F.3d 51, 53 (2d Cir. 1999) (citing Dwares v. City of New York, 985 F.2d 94, 98 [2d Cir. 1993]). "Allegations which are nothing more than broad, simple, and conclusory statements are insufficient to state a claim under § 1983." Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 887 (2d Cir. 1987).
In this Circuit, personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983. See McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977) (citing Mukmuk v. Comm'r of Dep't of Correctional Servs., 529 F.2d 272, 275 [2d Cir. 1976]); Johnson v. Newburgh Enlarged School District, 239 F.3d 246, 254 (2d Cir. 2001). A § 1983 complaint must contain allegations that a defendant is "directly and personally responsible for the purported unlawful conduct." Alfaro, 814 F.2d at 886 (citing Black v. U.S., 534 F.2d 524, 527-528 [2d Cir. 1976]); see also Lee v. State of New York Dep't of Correctional Servs., No. 97 Civ. 7112, 1999 WL 673339, at *15 (S.D.N.Y. Aug. 30, 1999).
Personal involvement of a supervisory employee in § 1983 actions may be shown by evidence that: (1) the defendant participated directly in the alleged constitutional violation; (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong; (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such policy or custom; (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts; or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring.Lee, id.; see also Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).
Due Process Claim Against Defendant Luther
Pilgrim contends that Luther violated his due process rights when he lodged a misbehavior report against him based upon false information obtained from a confidential informant. "[A] prison inmate has no general constitutional right to be free from being falsely accused in a misbehavior report." Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir. 1997). Furthermore, no authority exists for the proposition that preparing a misbehavior report that is subsequently relied upon in an allegedly defective disciplinary hearing constitutes a constitutional violation. See Cepeda v. Coughlin, 785 F. Supp. 385, 391 (S.D.N.Y. 1992). Moreover, even if it is assumed that the misbehavior report was false, "[t]he filing of a false report does not, of itself implicate the guard who filed it in constitutional violations which occur at a subsequent disciplinary hearing." Williams v. Smith, 781 F.2d 319, 324 (2d Cir. 1986). However, a false accusation contained in a misbehavior report can rise to the level of a constitutional violation when it is made in retaliation for a prisoner's exercise of the prisoner's substantive constitutional rights. See Boddie v. Schnieder, 105 F.3d at 862; Jones v. Coughlin, 45 F.3d 677, 679-80 (2d Cir. 1995); Franco v. Kelly, 854 F.2d 584, 588-90 (2d Cir. 1988); Williams v. Goord, 111 F. Supp.2d 280, 290 (S.D.N.Y. 2000). Inasmuch as plaintiff makes no claim that Luther lodged the IMR against him as a retaliatory act, based on the above, the Court finds that the due process claim made against Luther, arising out of his alleged filing of a false IMR against Pilgrim, is meritless.
First Amendment Violation by Defendant Luther
Pilgrim contends that Luther's seizure of the "Wake-Up" documents from his cell violated his First Amendment right to free speech because the contents of the documents seized were "personal" and not proscribed by any prison rules or regulations.
A prisoner, such as plaintiff, has no reasonable expectation of privacy in the prison cell to which the prisoner is assigned. See Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194 (1984); Willis v. Artuz, 301 F.3d 65, 67 (2d Cir. 2002). Therefore, even though the search for and the seizure of documents, about which Pilgrim complains, may have trampled upon plaintiffs First Amendment right to free speech, so long as the search and the seizure were conducted pursuant to prison regulations that are reasonably related to legitimate penological interests, no actionable constitutional violation exists. See Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 2261 (1987); Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 129, 97 S.Ct. 2532, 2539-2540 (1977).
Furthermore, "[p]rison administrators must be given deference and latitude to determine the probable consequences of allowing certain speech and to take reasonable steps to prevent breaches of security and prisoner violence." Leitzsey v. Coombe, 998 F. Supp. 282, 286 (W.D.N.Y. 1998). Here, contrary to plaintiffs contention, the materials seized from his cell were taken pursuant to prison rules (Rule Nos. 104.10, 104.11 and 104.12), designed to safeguard the correctional facility from: disorder or conduct that might lead to violence or to collective action on the part of the prisoners designed to enable them to take over the facility. Prior to the seizure, prison officials were aware that efforts were under way to encourage prisoners to engage in concerted action to disrupt the facility's operations at or about the turn of the century, January 2000. In addition, prison officials had received information from a confidential informant prior to the seizure, that plaintiff had distributed the documents at issue to other prisoners. Under these circumstances, and given the content of the seized documents — the substance of which the Court can infer was communicated to prison officials by their confidential informant — the Court finds that the confiscation of plaintiffs writings, pursuant to prison rules, was reasonably related to legitimate penological interests: the safe and orderly administration of the correctional facility. Consequently, a finding that plaintiffs First Amendment claim against Luther is baseless, is warranted.
Claims Against Defendant Vaughn
Pilgrim maintains that Vaughn violated his due process rights "guaranteed by the Fifth, and Fourteenth Amendments" by failing to provide him with assistance in marshaling evidence and preparing his defense.
The Second Circuit Court of Appeals has held that prisoners, like Pilgrim, who are confined to a facility's SHU or who have been transferred from one facility to another following the lodging of disciplinary charges, have a right to receive effective and substantive assistance from corrections personnel in preparing a defense to the disciplinary charges prior to the convening of a disciplinary hearing.See Eng v. Coughlin, 858 F.2d 889 (2d Cir. 1988). The Court explained inEng that a prisoner's right to substantive assistance, pre-hearing, derives from the Due Process Clause of the Fourteenth Amendment. The assistance to be rendered to a prisoner, like Pilgrim, includes gathering evidence and obtaining documents and relevant tapes, as well as interviewing witnesses. The assistance "must be provided in good faith and in the best interests of the inmate." Eng v. Coughlin, 858 F.2d at 898.
Plaintiff contends that when he asked Vaughn to secure certain documents for him and to ensure that three (3) witnesses would appear at the disciplinary hearing, Vaughn informed him that the hearing officer assigned to preside at the disciplinary hearing would determine what witnesses, if any, would be summoned on plaintiffs behalf and, at the time of the hearing, would determine which documents, if any, to disclose to plaintiff. It appears to the Court that Vaughn failed to provide effective and substantive assistance to Pilgrim as he sought to marshal evidence and to prepare a defense to the charges made against him. "[A]n assigned assistant who does nothing to assist a disabled prisoner . . . has failed to accord the prisoner his limited constitutional due process right of assistance." Eng v. Coughlin, 858 F.2d at 898.
The defendants assert that Vaughn's failure to render to Pilgrim the assistance he sought is of no import. They contend that the due process claim made against Vaughn should be dismissed because: (a) plaintiff admitted writing the "Wake-Up" documents; and (b) the contents of those documents provided a sufficient basis for the hearing officer to find plaintiff guilty of violating a prison rule, for which Pilgrim was penalized. Defendants are wrong.
Vaughn's obligation, as Pilgrim's "employee assistant," was, at a minimum, to perform the investigatory tasks, prior to the hearing, which Pilgrim, had he been able, would have performed for himself. See Eng v. Coughlin, 858 F.2d at 898. Vaughn could not have known, when Pilgrim requested that he obtain certain documents for him and ensure that three (3) witnesses would be summoned to the disciplinary hearing, how Pilgrim would use the documents or what testimony he might elicit from the witnesses in his defense to the disciplinary charges. The defendants' reliance on the outcome of the disciplinary hearing to justify Vaughn's failure to assist Pilgrim effectively in marshaling evidence to prepare and to present his defense is misplaced.
Plaintiffs due process right to pre-hearing assistance was not dependant upon the ultimate outcome of the disciplinary hearing. A prisoner's due process right to pre-hearing assistance exists whether he is ultimately found guilty or exonerated. Accordingly, the Court finds that dismissing plaintiffs due process claim against Vaughn, for failure to state a claim upon which relief might be granted, would not be reasonable or appropriate.
Due Process Claim Against Defendant Smith
Plaintiff alleges that the disciplinary hearing, over which Smith presided, was constitutionally infirm for several reasons. Pilgrim contends that the hearing officer, Smith, was not impartial due to his investigation of the IMR, his denial to Pilgrim of access to documents Pilgrim needed to support his defense and his determination to prevent Pilgrim from summoning witnesses to the hearing to give testimony on his behalf. The defendants do not deny that Smith investigated the IMR. Nor do they contest that Smith declined to permit Pilgrim access to the documents he requested. Furthermore, they maintain that, even if Smith decided not to allow plaintiff to call three (3) witnesses who might provide testimony in support of his defense, this fact is insignificant because plaintiff admitted that he wrote the "Wake-Up" documents found in his cell. Moreover, they contend that the content of those documents supported the finding that plaintiff violated a prison rule, for which he was penalized. In addition, the defendants maintain that no error was committed by assigning Smith to serve as the hearing officer for Pilgrim's disciplinary hearing because any other person assigned to serve in that capacity would have reached the same conclusion as Smith: that plaintiff was guilty of violating a prison rule, for which he was penalized.
Pilgrim was entitled to have a fair and impartial hearing officer preside at his Tier III hearing. Due process considerations disqualify a prison official who witnessed an act charged against a prisoner, or who investigated the underlying charge(s), from serving as the hearing officer at the subsequent disciplinary hearing. See McCann v. Coughlin, 698 F.2d 112, 122 n. 10 (2d Cir. 1983); Powell v. Ward, 542 F.2d 101, 103 (2d Cir. 1976); Davidson v. Capuano, No. 78 Civ. 5724, 1988 WL 68189, at *8 (S.D.N.Y. June 16, 1988).
Due process also requires that, subject to the legitimate safety and correctional goals of a correctional facility, a prisoner should be permitted to call witnesses and to present documentary evidence at a disciplinary hearing. See Wolff v. McDonnell, 418 U.S. 539, 566, 94 S.Ct. 2963, 2979 (1974); Kalwasinski v. Morse, 201 F.3d 103, 108 (2d Cir. 1999). While a hearing officer has the discretion to refuse to permit a witness to testify at a disciplinary hearing on the basis of irrelevance or "lack of necessity," Wolff v. McDonnell, 418 U.S. at 566, 94 S.Ct. at 2980, where, as here, the record before the Court lacks any detailed factual recitation of the reasons for Smith's decision to withhold documents from Pilgrim and to refuse to permit him to call three witnesses to testify, the Court cannot say definitively that plaintiff can prove no set of facts in support of the due process claim he has asserted against Smith. See Fox v. Coughlin, 893 F.2d 475, 478 (2d Cir. 1990). Accordingly, this branch of the defendants' motion should not be granted.
Sandin Due Process Claim
Pilgrim has alleged that the penalty imposed upon him by Smith was excessively harsh and atypical of the deprivation endured by prisoners as an ordinary incident of prison life. In making this claim, Pilgrim has asserted that he has been deprived of a liberty interest that is protected by the Constitution's Due Process Clause. See Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293 (1995).
Pilgrim has identified the claim pertaining to the severity of the penalty he received as arising out of the Eighth Amendment's proscription against cruel and unusual punishment. However, given the language Pilgrim used to frame his contention, language used explicitly in Sandin, the Court has construed his claim challenging the duration and nature of his SHU confinement as a due process liberty interest claim as described by the Supreme Court in Sandin.
The defendants' motion does not address plaintiffs Sandin claim. It is not clear to the Court whether the defendants' silence on this issue is a result of oversight on their part or whether it is a concession by the defendants that a valid due process claim has been asserted by Pilgrim for which a motion under Fed.R.Civ.P. 12(b)(6) would be fruitless. In any event, the Court finds that plaintiff has asserted a Fourteenth Amendment due process claim as contemplated by Sandin that should not be dismissed at this stage of the litigation.
Qualified Immunity
The defendants contend that they are shielded from liability to plaintiff by the doctrine of qualified immunity. Since the Court has determined that the relief the defendant Luther seeks through this motion should be granted to him, the Court's analysis of the qualified immunity doctrine will be limited to the due process claims made against defendants Vaughn and Smith.
The doctrine of qualified immunity shields "government officials performing discretionary functions . . . from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known,"Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738 (1982), or insofar as it was objectively reasonable for them to believe that their acts did not violate those rights. See Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 3039-3040 (1987); Lennon v. Miller, 66 F.3d 416, 425 (2d Cir. 1995). The doctrine of qualified immunity would protect a government official from personal liability in a § 1983 action.
When analyzing a claim for qualified immunity in a § 1983 action, a court must first determine whether the plaintiff has stated that a constitutional violation occurred. Thereafter, the court must determine whether the constitutional right that plaintiff alleges was violated was clearly established at the time of the alleged wrongful act. If so, then the court may proceed to determine whether qualified immunity shields a government actor from liability for damages. See Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151 (2001).
Since 1988, when the Second Circuit Court of Appeals decided Eng v. Coughlin, supra, it has been clear that a prisoner confined to a correctional facility's SHU, pending the disposition of disciplinary charges, has a right to good faith effective and substantive pre-hearing assistance, and that a prison official who is assigned to provide that assistance but "does nothing," violates due process. Therefore, the doctrine of qualified immunity will shield Vaughn from liability to Pilgrim only if Vaughn could have reasonably believed that plaintiffs right to due process was not violated by Vaughn's failing to obtain the documents and witnesses Pilgrim sought for his defense to the misbehavior report.
The record before the Court lacks facts from which it could be concluded that Vaughn's conduct was objectively reasonable. Vaughn did not perform any of the investigatory tasks, prehearing, for Pilgrim that Pilgrim asked him to perform. The Court finds that it was not objectively reasonable for Vaughn to conclude that his failure to obtain the documents Pilgrim needed for his defense, and that his mere reporting to Pilgrim that the hearing officer would decide which witnesses, if any, should appear at the Tier III hearing, would not violate Pilgrim's due process right to effective and substantive pre-hearing assistance. Accordingly, the doctrine of qualified immunity should not shield Vaughn from liability to Pilgrim.
As demonstrated by the cases cited earlier in this writing, it had been clearly established, long before Pilgrim's disciplinary hearing was held, that due process required that: (i) the hearing officer be impartial, see McCann and Powell, supra and (ii) with limited exceptions, a prisoner be permitted to call witnesses and to present documentary evidence at his disciplinary hearing. Therefore, the Court concludes that Smith's failure to articulate a reason(s) for denying Pilgrim the opportunity to do either, and his investigation of the underlying IMR, prevent a finding that it was objectively reasonable for Smith to believe that his participation in and conduct at Pilgrim's Tier III hearing would not be violative of due process. As a result, Smith may not invoke the doctrine of qualified immunity to insulate himself from liability to Pilgrim.
Inasmuch as the defendants have not addressed Pilgrim's Sandin claim, through their motion, the Court is unable to determine what impact, if any, qualified immunity would have on defendants' liability to plaintiff on that claim.
IV. RECOMMENDATION
For the reasons set forth above, the defendants' motion to dismiss, made pursuant to Fed.R.Civ.P. 12(b)(6), should be granted with respect to defendant Luther and denied as it pertains to defendants Vaughn and Smith.V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636 (b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also, Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Richard C. Casey, 500 Pearl Street, Room 1950, New York, New York, 10007, and to the chambers of the undersigned, 40 Foley Square, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Casey. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IEU AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992);Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).