Opinion
99 Civ. 5747 (LAP) (JCF)
March 12, 2002
REPORT AND RECOMMENDATION
Mark Simon, proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging a prison disciplinary hearing that resulted in his confinement in the Special Housing Unit ("SHU") at the Green Haven Correctional Facility ("Green Haven"). He argues that the evidence presented at the hearing was insufficient to sustain a finding of guilt and that the hearing officer was biased. For the reasons that follow, I recommend that Mr. Simon's petition be denied.
Background
Mr. Simon is now incarcerated at Sing Sing Correctional Facility in Ossining, New York. In August 1997, while incarcerated at Green Haven, he was charged with four prison infractions stemming from an encounter with Corrections Officer W. Moss: assault on staff, in violation of 7 N.Y.C.R.R. § 270.2(B)(1)(ii) ("Rule 100.11"); interference with an employee, in violation of 7 N YC.R.R. § 270.2(B)(8)(i) ("Rule 107.10"); refusing a direct order, in violation of 7 N.Y.C.R.R. § 270.2(B)(7)(i) ("Rule 106.10"); and ignoring commands relating to inmate movement, in violation of 7 N.Y.C.R.R. § 270.2(B)(10)(iii) ("Rule 109.12"). He pled guilty to the latter two charges but contested the assault and interference charges, presenting his case during Tier III disciplinary proceedings that took place on August 17, August 20, and August 25, 1997. On August 17, Lieutenant Nagy, the hearing officer, opened the proceedings by reading into the record the misbehavior report that Officer Moss filed against Mr. Simon. The report stated that Mr. Simon, after becoming "loud and argumentative," reacted to Officer Moss' order to sit on a nearby bench by "suddenly sw[inging] his right arm with a closed fist, grazing [Officer Moss'] face, and striking [his] right upper bicep area, knocking [his] arm down." According to the report, Officer Moss then put his right hand on Mr. Simon's right shoulder to prevent him from leaving, whereupon Mr. Simon "turned and with his left hand slapped [Officer Moss'] arm down and continued walking through the gate." Once through the gate, Mr. Simon allegedly "removed his shirt, [threw] it down on the floor, [and yelled] `Come on, let's go.'" (Affirmation of Edward Rodriguez in Opposition to Petitioner's Application for Habeas Relief dated Oct. 26, 2001 ("Rodriguez Aff."), Exh. A ("Inmate Misbehavior Report")).
On August 20, the hearing continued and the first witness, Officer L. Babcock, was called. Under questioning by Lieutenant Nagy, he indicated that he "was in the general area of the incident, but actually . . . didn't even know that it happened until afterwards," and that he "had no direct first hand knowledge of [the] incident." (Rodriguez Aff., Exh. D ("August 20 Transcript") at 2-3). Before being excused, he stated both that it would be "unlikely" that a physical struggle had transpired without his noticing because he was within 25 feet, and that "evidently it happened and I didn't [notice]." (August 20 Transcript at 5-7).
Lieutenant Nagy then suggested that with approximately 200 inmates in the room to attend to, there was ample opportunity for distraction. (August 20 Transcript at 9).
The next witness, Bert Heldron, was called as a character witness on behalf of Mr. Simon. Upon learning that Mr. Heldron had no direct knowledge of the incident, Lieutenant Nagy disallowed his testimony and precluded the appearance of further character witnesses, noting that, "we're dealing with this specific incident on 8/11/97 at ten to two." (August 20 Transcript at 12-13).
Jerry Robert Warwick was then called to testify. Mr. Warwick is a civilian employee at Green Haven who was working nearby when the encounter occurred. Asked by Lieutenant Nagy about his direct knowledge of the events, Mr. Warwick stated, in sum and substance, that the incident began when Officer Moss temporarily confiscated Mr. Simon's I.D. card, and escalated when Mr. Simon walked away, ignoring commands to stop and return. (August 20 Transcript at 13-15). He testified that Officer Moss then began to follow Mr. Simon, who stopped and "took off his shirt very quick." (August 20 Transcript at 15). Officer Moss reacted by "put[ting] his hand on [Mr. Simon's] shoulder . . . to guide him back through the gate," which prompted Mr. Simon to "sw[ing] his hand up and knock — it appeared that [Mr. Simon] struck [Officer Moss] in the face and knocked his hand off of his shoulder and [told] him, `Don't put your hands on me. Don't touch me.'" (August 20 Transcript at 16).
According to Mr. Warwick, the encounter ended when Officer Moss, "kind of laid off then and repeatedly kept telling [Mr. Simon] to `Come back in, come back in,'" and Mr. Simon, "[e]ventually . . . came back in." (August 20 Transcript at 16).
Under lengthy questioning from Mr. Simon, Mr. Warwick's account of the physical contact remained unchanged: "[Mr. Simon] threw his arm up and knocked the Officer's hand off his shoulders. And in the process, it looked like he hit him in the face. I don't know whether or not think [sic] that was on purpose. . . . I know he was definitely trying to knock his hand off the shoulder here.
There's no doubt about that. That's what I saw." (August 20 Transcript at 34).
The next witness, inmate John Johnson, stated that Mr. Warwick was "standing right there when all of this happened" (August 20 Transcript at 39-40), but upon questioning by Mr. Simon, Mr. Johnson noted that although he was standing "right behind" the incident as it occurred, he did not see Mr. Simon instigate any contact. (August 20 Transcript at 41, 44). Rather, Mr. Johnson claimed that Officer Moss "grabbed [Mr. Simon] by his shoulders," which prompted Mr. Simon to "[spin] around" and say, "Don't touch me." (August 20 Transcript at 43-44).
Inmate Clarence Roundtree was next to testify. He stated that Officer Moss "tried to physically restrain" Mr. Simon by "put[ting] both of his hands on [Mr. Simon's] shoulders" after Mr. Simon walked away because he thought he was not going to get his I.D. card back. (August 20 Transcript at 48). When asked if he saw Mr. Simon "make a fist and swing at Officer Moss and make contact with him," he said, "No, I didn't," and indicated that he would have been in a position to see it if it had happened. (August 20 Transcript at 58). Inmate Joseph Hatchett, who testified next, also indicated that he did not see Mr. Simon "make a fist and swing at [Officer Moss]," but that he did see Mr. Simon, "push Officer Moss' hand off his chest." (August 20 Transcript at 65-66).
The final two witnesses appeared during proceedings on August 25. Inmate Rodney Bourne testified that Officer Moss "pushed, shoved" Mr. Simon and "went to grab" him and that Mr. Simon responded by stating, "Don't put your hands on me," which was the "end of their little dispute." (Rodriguez Aff., Exh. E ("August 25 Transcript"), at 3-4). When asked if he saw Officer Moss "being assaulted and hit . . . by anybody," he said, "No, sir," and added that he saw Officer Moss pushing and shoving Mr. Simon. (August 25 Transcript at 5-6). The final witness, inmate Raymond Tinsley, substantially corroborated Mr. Borne's account, stating that he "observed the incident," and that Mr. Simon "did not throw a punch." (August 25 Transcript at 11).
At the conclusion of the August 25 proceeding, Mr. Simon denied attempting to assault Officer Moss and noted that this was only the second time in nine years that he has been written up. (August 25 Transcript at 14). He also objected that he was not able to "receive certain documents in regards to this hearing like the report that was written — allegedly written by — that I found out about at the last hearing by Mr. Barry Warwick." (August 25 Transcript at 14). Finally, he characterized the incident as "only an attempt to brush Mr. Moss' hands off of my shoulders," stating that, "Nobody can say that a punch was thrown." (August 25 Transcript at 15). The hearing was then adjourned.
A short while later, Lieutenant Nagy reopened the hearing in order to read into evidence the paper that Mr. Simon claimed he was denied access to. The document, a "To-From" memo written to Sergeant Gosch by Mr. Warwick on the day after the incident (Rodriguez Aff., Exh. B (the "Warwick Memo")), described Mr. Simon as "[flinging] his arm up, striking the Officer's arm and face, knocking the Officer's arm away and telling the Officer not to touch him." (August 25 Transcript at 19). It further stated that Mr. Simon "kept refusing [to come back in] and verbally taunt[ed] the Officer, telling [him] `You're not as tough as you think you are.'" (August 25 Transcript at 19). Immediately after the Warwick Memo was read into the record, Mr. Simon raised several more objections, claiming, among other things, that there were inconsistencies between the Warwick Memo and Mr. Warwick's testimony on August 20, and that he should have been allowed to call character witnesses. (August 25 Transcript at 20-22). After a short adjournment, he was found guilty on all four counts and sentenced to eighteen months in the SHU and 540 days loss of package, commissary, and telephone privileges. As evidence of guilt, Lieutenant Nagy stated that he relied on the testimony from Mr. Warwick and the Warwick Memo, both of which corroborated the Inmate Misbehavior Report. (August 25 Transcript at 24-26).
Procedural History On November 14, 1997, Mr. Simon filed a petition pursuant to Article 78 of the New York Civil Practice Law and Rules, alleging that several due process violations had occurred during the Tier III hearings that resulted in his loss of good time credits. He contended both that the hearing officer was biased and that the verdict had been based on insufficient evidence. (Verified Petition, attached as Exh. H to Rodriguez Aff., at 3). His petition was dismissed on March 23, 1998, by the New York State Supreme Court, Dutchess County. (Decision and Order dated March 23, 1998, attached as Exh. K to Rodriguez Aff.). On April 8, 1998, Mr. Simon filed a notice of appeal with the Appellate Division, Second Department, but on April 29, 1999, the Appellate Division dismissed the appeal for failure to perfect in a timely fashion. (Decision and Order dated April 29, 1999, attached as Exh. A to Letter of Edward Rodriguez dated Dec. 20, 2000).
The respondent alleges in passing that the petitioner did not, in fact, lose any good time credits as a result of the Tier III hearings at issue here. (Memorandum of Law in Opposition to Petitioner's Application for a Writ of Habeas Corpus at 3 n. 2). The Court need not reach this issue because, whether or not good time credits were actually lost, the hearings of August 17, August 20, and August 25 satisfied due process requirements, as discussed below.
On June 28, 1999, this Court received the petitioner's application for a writ of habeas corpus. After two preliminary motions to dismiss, the parties were directed to address the merits of the petition.
On May 18, 2000, the respondent moved to dismiss for lack of subject matter jurisdiction, claiming that Mr. Simon was no longer in custody because he had been released from the SHU back into the general prison population. My Report and Recommendation, which reasoned that a loss of good time credits satisfies the "in custody" requirement of 28 U.S.C. § 2241(c)(3), was adopted, and the motion was denied on November 11, 2000.
In a letter dated December 20, 2000, the respondent again moved to dismiss, arguing that Mr. Simon failed to exhaust his remedies in state court when he neglected to perfect his appeal to the Appellate Division. I found that the summary denial of Mr. Simon's in forma pauperis application by that court was "an objective factor external to his defense" that excused his failure to perfect in a timely manner. My Report and Recommendation was again adopted, and this motion was denied on September 19, 2001.
Discussion
Mr. Simon alleges that his due process rights were violated both because his disciplinary conviction was based on insufficient evidence and because the hearing officer, Lieutenant Nagy, was biased. Although the "due process requirements for a prison disciplinary hearing are in many respects less demanding than those for criminal prosecutions," the Fourteenth Amendment guarantees prisoners certain minimum rights. Edwards v. Balisok, 520 U.S. 641, 647 (1997). Specifically, with respect to a disciplinary hearing, due process requires, among other things, that (1) the inmate be judged by a fair and impartial hearing officer; and (2) the disciplinary conviction be supported by "some evidence." See Superintendent v. Hill, 472 U.S. 445, 454 (1985); Kalwasinski v. Morse, 201 F.3d 103, 108 (2d Cir. 1999); McCann v. Coughlin, 698 F.2d 112, 121-22 (2d Cir. 1983).
A. Sufficiency of the Evidence
Mr. Simon first contends that the evidence was insufficient to support the verdict. Resolution of this issue turns on whether there was "some evidence" supporting the findings of the hearing officer. Hill, 472 U.S. at 454. Thus, the Court is required to examine the record to determine "whether there is any evidence in the record that could support the conclusion reached by" the hearing officer. Zavaro v. Coughlin, 970 F.2d 1148, 1149 (2d Cir. 1992) (citations omitted).
The proof on which Lieutenant Nagy relied was sufficient to support his findings. Under Rule 100.11 an inmate is guilty if it is shown that he "assault[ed], inflict[ed] or attempt[ed] to inflict bodily harm upon any staff member." According to the Inmate Misbehavior Report, Mr. Simon "suddenly swung his right arm with a closed fist, grazing [Officer Moss'] face, and striking [Officer Moss] in [his] right upper bicep area, knocking [his] arm down." Officer Moss then put his right hand on Mr. Simon's right shoulder to prevent him from leaving, whereupon Mr. Simon "turned, and with his left hand slapped [Officer Moss'] arm down and continued walking through the gate." (Inmate Misbehavior Report).
Mr. Simon does not specify whether he is contesting the sufficiency of the evidence of the Rule 107.10 conviction (interference with an employee) or the Rule 100.11 conviction (assault on staff). Because violation of Rule 100.11 is the more serious of the two charges, and because an assault would also constitute interference, evidence sufficient for conviction on the assault charge is sufficient for conviction on both. Thus, the discussion will be limited to the Rule 100.11 violation.
Whether or not this contact was intentional, it is sufficient to establish his guilt under Rule 100.11 because it occurred as Mr. Simon was resisting Officer Moss' attempts to control him. See, e.g., Almonar v. Selsky, 253 A.D.2d 929, 929, 678 N.Y.S.2d 402, 402 (3d Dep't 1998) (affirming that inmate was guilty of assault on staff, despite correction officer's candid acknowledgment that his injury possibly could have been sustained accidentally, where evidence showed that inmate resisted officer's effort to subdue him, during which officer's elbow was cut by razor blade).
There is some evidence that Mr. Simon may not have intentionally struck Officer Moss in the face. Mr. Warwick, for example, stated that, "I don't know whether or not [the contact with the face] was on purpose, I don't know. I can't say. I know [Mr. Simon] was definitely trying to knock [Officer Moss'] hand off the shoulder there. There's no doubt about that. That's what I saw." (August 20 Transcript at 34).
Moreover, although the misbehavior report by itself is sufficient to establish Mr. Simon's guilt, see Chapple v. Keane, 903 F. Supp. 583, 585 (S.D.N.Y. 1995) (misbehavior report alone enough evidence to support hearing officer's finding of guilt), there is corroborating evidence in the record. Barry Warwick, who saw much if not all of the incident, testified that "Mr. Simon swung his hand up and knocked — it appeared that he struck him in the face and knocked his hand off of his shoulder and would tell him, `Don't put your hands on me. Don't touch me.'" (August 20 Transcript at 16). The Warwick Memo further supports Lieutenant Nagy's findings, describing Mr. Simon's reaction to Officer Moss as "[flinging] his arm up, striking the Officer's arm and face, knocking the Officer's arm away and telling the Officer not to touch him." Thus, the record clearly establishes that more than the required "modicum" of evidence supported Lieutenant Nagy's findings. See Hill, 472 U.S. at 455.
To be sure, there was conflicting testimony. Several inmates claimed, among other things, that Officer Moss was the aggressor and that Mr. Simon never struck Officer Moss. (Testimony of Inmate Bourne (August 25 Transcript at 5,6); Testimony of Inmate Johnson (August 20 Transcript at 41, 43)). However, a hearing officer's resolution of a conflict that involves a determination of witness credibility is accorded particular deference. See Miller v. Fenton, 474 U.S. 104, 114 (1985). Indeed, a reviewing court is not required to engage in "examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence." Hill, 472 U.S. at 455. Accordingly, Lieutenant Nagy's judgment should not be disturbed.
B. Bias
Mr. Simon also alleges that Lieutenant Nagy was biased. He bases this claim on the fact that the hearing officer denied him the opportunity to call character witnesses at the hearing and on the allegation that a second "To-From" memorandum (Inter-Departmental Communication From Sergeant Gosch to Lieutenant Nagy dated Aug. 11, 1997 (the "Gosch Memo"), attached as Exh. B to Rodriguez Aff., Exh. M), was deliberately concealed from him at the hearing. (Petioner's Rebuttal Motion to Respondent's Opposition to a Writ of Habeas Corpus ("Pet. Rebuttal Motion"), at 8-9). Although inmates facing disciplinary charges have the right to call witnesses in their defense, the Supreme Court has made clear that it is a qualified right, subject to restrictions justified by the context of confinement. Wolff v. McDonnell, 418 U.S. 539, 556 (1974) ("[T]he fact that prisoners retain rights under the Due Process Clause in no way implies that these rights are not subject to restrictions imposed by the nature of the regime to which they have been lawfully committed."). Accordingly, New York has qualified the right of inmates to call witnesses during prison disciplinary hearings:
The inmate may call witnesses on his behalf provided their testimony is material, is not redundant, and in doing so does not jeopardize institutional safety or correctional goals. If permission to call a witness is denied, the hearing officer shall give the inmate a written statement stating the reasons for the denial, including the specific threat to institutional safety or correctional goals presented.
This standard comports with the due process rights to which prisoners are entitled in a disciplinary hearing. Walker v. Bates, 23 F.3d 652, 656 (2d Cir. 1994). Indeed, prison officials have broad discretion to preclude witnesses, especially when penological goals are threatened. Ponte v. Real, 471 U.S. 491, 495 (1985).
Here, Lieutenant Nagy was within this discretion in precluding character testimony because it would have been redundant and would have unnecessarily delayed the hearing. See, e.g., Fox v. Coughlin, 893 F.2d 475, 478 (2d Cir. 1990) (citing "institutional efficiency" as satisfactory reason to deny testimony at disciplinary hearing). Moreover, Lieutenant Nagy thoroughly interviewed all seven witnesses who claimed to have seen the incident and allowed Mr. Simon great latitude in confronting each witness, even after it became apparent that much of the elicited testimony was redundant. Therefore, because Mr. Simon was provided with adequate notice of the discretionary decision to exclude character witnesses, and because courts should not be "too ready to exercise oversight and put aside the judgment of prison administrators," Wolff, 418 U.S. at 566, Lieutenant Nagy's decision to preclude the testimony of character witnesses did not violate Mr. Simon's due process rights, and certainly does not evince bias.
In light of the fact that Mr. Simon was allowed to testify to his clean disciplinary history (August 25 Transcript at 14), the testimony of character witnesses would have been redundant. It appears that Mr. Simon also wanted to use character witnesses to demonstrate "the kind of person" he is. (August 25 Transcript at 14). Testimony to that effect was properly excluded because it would have been unnecessary and irrelevant. Wolff, 418 U.S. at 566 ("prison officials must have the necessary discretion to keep [disciplinary hearings] within reasonable limits," and may refuse to call witnesses "for irrelevance [or] lack of necessity").
Mr. Simon also alleges that Lieutenant Nagy's bias was illustrated when the Gosch Memo was "deliberately" withheld "in order to assure that civilian Barry Warwick's testimony would support [the] findings of . . . guilt." (Pet. Rebuttal Motion at 8). However, Mr. Simon provides no evidence with which this Court might test his claim and fails to articulate how access to the Gosch Memo would have aided his case. He offers only conclusory statements such as, "Let us not forget, the hearing officer deliberately attempted to withhold both [the Warwick Memo] and [the Gosch Memo] in order to assure that civilian Barry Warwick's testimony would support his findings of petitioner's guilt. Why else would [Lieutenant Nagy] continue the charade of withholding [the Gosch Memo] after [I] discovered the existence of [the Warwick Memo]." (Pet. Rebuttal Motion at 8).
Mr. Simon merely relies on Grillo v. Coughlin, 31 F.3d 53, 56 (2d Cir. 1994), for the proposition that, "A hearing in which the false accusation or evidence is shown to the fact finder but concealed from the accused would not comport with the Due Process standards of Wolff v. McDonnell" (Pet. Rebuttal Motion at 3-4).
In Grillo, however, the inmate petitioner was shown copies of his urinalysis report that differed from those on which the hearing officer relied in finding him guilty. 31 F.3d at 55. Here, by contrast, there is no indication that Mr. Simon was denied access to any documents or evidence on which the hearing officer based his decision. In his findings, Lieutenant Nagy states that he relied on the Inmate Misbehavior Report, the testimony of Barry Warwick, and the Warwick Memo. It is clear from the record that the petitioner had access to all of these materials before the hearing.
Thus, because there is nothing in the record to indicate that the hearing officer, intentionally or otherwise, withheld evidence that he later relied upon, Grillo does not apply and no showing of bias has been made.
Conclusion
For the reasons set forth above, I recommend that Mr. Simon's petition for a writ of habeas corpus be denied. Persuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(e) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from this date to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Loretta A. Preska, Room 1320, and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007.
Failure to file timely objections will preclude appellate review.