Opinion
9:16-cv-1157 (FJS/TWD)
08-31-2018
DANIEL WILLIAMS, Plaintiff, v. N. KORINES, et al., Defendants.
APPEARANCES: DANIEL WILLIAMS 03-A-5915 Southport Correctional Facility Pine City, NY 14871 Plaintiff, pro se BARBARA D. UNDERWOOD Acting Attorney General of the State of New York The Capitol Albany, NY 12224 Counsel for Defendants OF COUNSEL: LYNN M. KNAPP BLAKE, ESQ. ADRIENNE J. KERWIN, ESQ.
APPEARANCES: DANIEL WILLIAMS
03-A-5915
Southport Correctional Facility
Pine City, NY 14871
Plaintiff, pro se BARBARA D. UNDERWOOD
Acting Attorney General of the State of New York
The Capitol
Albany, NY 12224
Counsel for Defendants OF COUNSEL: LYNN M. KNAPP BLAKE, ESQ.
ADRIENNE J. KERWIN, ESQ. THÉRÈSE WILEY DANCKS, United States Magistrate Judge ORDER AND REPORT-RECOMMENDATION
I. INTRODUCTION
This pro se prisoner civil rights action, commenced pursuant to 42 U.S.C. § 1983 by Plaintiff Daniel Williams, an inmate in the custody of the New York Department of Corrections and Community Supervision ("DOCCS"), has been referred for a report and recommendation by the Hon. Fredrick J. Scullin, Jr., Senior United States District Judge, pursuant to 28 U.S.C. § 636(b) and Northern District of New York Local Rule 72.3(c).
Plaintiff claims Defendants Korines, Smith, Kober, Pingotti, Liberty, Rodriguez, Uhler, and Annucci violated his constitutional rights when they punished him for possessing personal photographs depicting gang-related "hand gestures" in violation of DOCCS Disciplinary Rule 105.13. (Dkt. No. 16.) Plaintiff alleges Korines, Kober, and Pingotti conspired to confiscate his photographs and subject him to improper discipline in violation of his constitutional rights. Id. at 10. Plaintiff seeks monetary damages, along with declaratory and injunctive relief. Id. at 21-22.
Page references to documents identified by docket number are to the numbers assigned by the CM/ECF docketing system maintained by the Clerk's Office. Paragraph numbers are used where documents identified by the CM/ECF docket number contain consecutively numbered paragraphs.
Currently pending before the Court is Defendants' motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Dkt. No. 45.) For the reasons discussed below, the Court recommends that Defendants' motion be granted.
II. FACTUAL AND PROCEDURAL SUMMARY
The majority of material facts are not in dispute. (Compare Dkt. No. 45-22 with Dkt. No. 50-2.) Rule 105.13 states:
An inmate shall not engage in or encourage others to engage in gang activities, or meetings, or display, wear, possess, distribute or use gang insignia of materials including, but not limited to, printed or handwritten gang or gang related materials.
Note: For purposes of this rule, a gang is a group of individuals, having a common identifying name, sign, symbol or colors, who have individually or collectively engaged in a pattern of lawlessness (e.g., violence, property destruction, threats of harm, intimidation, extortion, or drug smuggling) in one or more correctional facilities or that are generally recognized as having engaged in a pattern of lawlessness in the community as a whole. For purposes of this rule, printed or handwritten gang or gang related material is written material that, if observed in the inmate's
possession, could result in an inference being drawn about the inmate's gang affiliation, but excludes published material that that the inmate has obtained through the facility library or that has been approved for the inmate to possess through the media review process.(Dkt. No. 16 at 27.)
A. Misbehavior Report
In September 2014, Plaintiff was transferred to Shawangunk Correctional Facility ("Shawangunk"). (Dkt. No. 45-22 at ¶ 2.) On September 11, 2014, Plaintiff was issued a misbehavior report authored by Defendant Korines, a Corrections Officer ("C.O.") at the time, charging him with violating Rule 105.13 (Gangs):
On [September 11, 2014, at 3:15 pm] I was asked to review the personnel [sic] property of inmate Williams, D. 03A5915. While reviewing the personnel [sic] property I found 16 pictures with people showing hand signs. [Offender Rehabilitation Coordinator ("ORC")] Kober was in the area at the time and I asked him to review the pictures. He advised me that Williams, D. goes by the nickname "Cike Bike" and has previously been identified as a Crip. Upon review of the pictures, by ORC Kober, he indicated that they appear to be pictures related to a gang known as the Crips, in violation of Rule 105.13.(Dkt. No. 16 at 25; Dkt. No. 45-4 at 15.) Plaintiff was served a copy of the misbehavior report on September 12, 2014, at 8:30 am. (Dkt. No. 45-22 at ¶ 5.)
B. First Disciplinary Hearing
On September 18, 2014, Defendant Pingotti, Deputy Superintendent for Security at Shawangunk, began the Tier III disciplinary hearing regarding the September 11, 2014, misbehavior report (the "first disciplinary hearing"). Id. at ¶ 13. Non-party Sergeant ("Sgt.") Lange served as Plaintiff's employee assistant. (Dkt. No. 45-5 at 4.)
Pingotti read the misbehavior report into the record. Id. at 10. Plaintiff pleaded not guilty to Rule 105.13. Id. at 12. Plaintiff admitted that the sixteen photographs were his but argued they had never been "depicted as Gangs or Contraband" at any other DOCCS facility. Id. at 15, 17.
At Plaintiff's request, non-party Captain Bertone testified that the search of Plaintiff's property on September 11, 2014, had been prompted by his altercation with another inmate. Id. at 22. Pingotti called Defendant Kober, ORC at Shawangunk, to testify. Id. at 27. Kober reviewed the photographs and indicated which photographs depicted gestures he believed to be gang-related. Id. at 29-43. Plaintiff was permitted to ask relevant questions and raise objections. See id. At the conclusion of his testimony, Kober testified he had received training in gangs generally, gang identification, gang lingo and jargon, and gang "tags" on a wall or in a picture. Id. at 45.
Plaintiff then requested two additional witnesses, ORC McCarthy of Five Points Correctional Facility and Sgt. Cochran of Attica Correctional Facility, who, according to Plaintiff had viewed his photographs in the past and would refute Kober's testimony. Id. at 46. Pingotti reserved his decision. Id. Plaintiff also requested to call Korines and Lange as witnesses. Id. at 47-48.
The hearing resumed on September 22, 2014. Id. at 49. Plaintiff was permitted to ask Lange questions relevant to the September 11, 2014, search and his role as Plaintiff's employee assistant. Id. at 49-59. Lange confirmed he provided Plaintiff with all of his requests except for a non-existent videotape of the September 11, 2014, search. Id. at 57-58.
Korines testified Captain Bertone authorized the September 11, 2014, search as part of an investigation. Id. at 62. Korines testified he found sixteen photographs of people showing hand signs. Id. at 60. Korines attached the confiscated photographs to the misbehavior report and provided Plaintiff with a contraband receipt but not a personal property form. Id. at 59-65. Korines answered questions about photographs. Id. at 62-73. Pingotti provided Plaintiff with a copy of the contraband receipt he denied having previously received. Id. at 73.
The hearing resumed on September 23, 2014. Id. at 75. Pingotti denied Plaintiff's two requested witnesses, ORC McCarthy and Sgt. Conklin, as redundant. Id. Plaintiff objected and also raised issues about prior witness' testimony. Id. at 75-76. Plaintiff then asked Pingotti to review a series of images he had collected from newspapers and magazines showing various people, including well-known public figures or celebrities, using "hand gestures" that Plaintiff claimed were the same as some of the "hand gestures" in his photographs. Id. at 76-83. Plaintiff reiterated a number of objections raised earlier in the hearing, including the "chain of custody" of the photographs and having not received a contraband receipt the day of the search. Id. at 84-86. Plaintiff further stated Rule 105.13 is misleading and objected to his "tainted" hearing. Id. at 86-87.
On September 25, 2014, Pingotti found Plaintiff guilty. Id. at 88. Pingotti based his decision upon the misbehavior report and the credible testimony that some of the photographs depicted individuals using "hand signs" associated with the gang known as the Crips. Id. at 88-89. He imposed sanctions of 180 days in solitary confinement, a corresponding loss of packages, commissary, and telephone, and confiscation of the sixteen photographs. Id. at ¶ 17; Dkt. No. 45-4 at 8-10. Pingotti indicated that "[t]his penalty reflects a clear understanding that prior dispositions for the same offense have not modified this inmate's behavior." Id. at 89.
On September 29, 2014, Plaintiff filed a grievance (SHG-29190-14), seeking the return of the sixteen confiscated photographs. (Dkt. No. 45-10 at 26.) Plaintiff's grievance was denied by Superintendent Smith, in relevant part, because the "photos were determined to be contraband and will not be returned." Id. at 27. Plaintiff did not pursue the grievance any further. (Dkt. No. 45-17 at ¶ 23.) Pingotti states, to the best of his knowledge, he returned the photographs, along with all documents connected with the first disciplinary hearing, to the file. (Dkt. No. 45-17 at ¶ 22.)
On September 26, 2014, Plaintiff sent a letter to Superintendent Smith requesting a "discretionary review" of Pingotti's decision. (Dkt. No. 45-4 at 3-6.) By memorandum dated October 8, 2014, Superintendent Smith replied:
I have carefully reviewed your letter of 9/26/14 and have determined the following. The hearing was conducted properly and the sanction was well within the guideline. Your violating Rule 105.13 is clearly supported by the evidence. As you well know your next step is to appeal to the Director of Special Housing.Id. at 2. Plaintiff filed an appeal, which was affirmed on December 5, 2014, by non-party Venettozi, Acting Director of Special Housing/Inmate Disciplinary Program. (Dkt. No. 45-6 at 11, 13, 19-28.) Plaintiff's request for reconsideration was denied. Id. at 13.
Plaintiff served six months in the segregated housing unit ("SHU") as a result of the September 11, 2014, misbehavior report from September 25, 2014, to March 25, 2015. (Dkt. No. 45-7 at 25; Dkt. No. 45-22 at ¶ 24.)
Plaintiff filed an Article 78 proceeding in state court challenging his disciplinary conviction. (Dkt. No. 16 at 12.) On March 3, 2016, the appellate division ruled in Plaintiff's favor and annulled the September 25, 2014, determination, and remanded the matter for a rehearing. (Dkt. No. 45-6 at 6-7.) In its decision, the court found the misbehavior report, photographs, and testimony provided substantial evidence to support the determination of guilt, but Pingotti should have permitted the testimony of Sgt. Cochran and ORC McCarthy to refute Kober's testimony that the hand gestures in the photographs depicted gang signs. Id. at 7.
On March 23, 2016, the September 25, 2014, guilty determination was administratively reversed and a rehearing was scheduled. Id. at 4. Defendant Uhler, Superintendent of Upstate Correctional Facility ("Upstate") was notified Plaintiff was to have a rehearing on the September 11, 2014, misbehavior report within fourteen days. Id. at 3.
C. Second Disciplinary Hearing
On March 26, 2016, Plaintiff was served a copy of the September 11, 2014, misbehavior report. (Dkt. No. 45-7 at 2.) On April 4, 2016, Defendant Liberty, a Commissioner's Hearing Officer ("CHO"), began the Tier III disciplinary hearing rehearing at Upstate (the "second disciplinary hearing"), where Plaintiff was housed at that time. Id.
Liberty confirmed Plaintiff was served a copy of the September 11, 2014, misbehavior report. Id. at 2. Liberty also confirmed Plaintiff had met with his employee assistant and noted that assistance was not yet complete. Id. at 3. She read the misbehavior report into the record and stated the original sixteen photographs were unavailable for review. Id. at 3-4. She advised Plaintiff the rehearing record consisted of black and white photocopies of nine photographs. Id. at 4. Plaintiff asked Liberty why his original photographs were not a part of the rehearing. Id. at 4-5. Liberty noted Plaintiff's objection and stated she would request the originals from Shawangunk, if available. Id. at 4-6. Plaintiff pleaded not guilty. Id. at 5.
When the hearing resumed on April 8, 2016, Liberty advised she was unable to locate the original photographs. Id. at 6. However, she obtained "color scans" of nine of the original photographs and advised Plaintiff she would be relying on the color scans as evidence. Id. at 13. The record shows they reviewed the materials Plaintiff had previously requested. Id. at 6-29. Plaintiff objected to Liberty relying on the color scans and the denial of some documents she deemed irrelevant. Id.
Plaintiff raised an objection to the "chain of custody" of the color scans and identified "Teacher Lee" as a potential witness. Id. at 30-32. Plaintiff also asked Liberty if she knew anyone at Upstate who had training in gang-related material. Id. at 32. She replied non-party C.O. Healy, who was present in the room as the escort officer, had relevant training. Id. Healy confirmed his training, and with Plaintiff's consent, agreed to testify. Id.
It was later determined Teacher Isabella, not Teacher Lee, had training in gang-related materials. Id. at 14.
Healy reviewed the color scans and identified those he believed depicted gang gestures. Id. at 33-69. He also commented on Rule 105.13 and the September 11, 2014, misbehavior report and responded to questions posed by Plaintiff and Liberty. Id. Throughout Healy's testimony, Plaintiff raised a number of objections, emphasizing the poor quality of the color scans. Id. Plaintiff and Liberty agreed to call Korines as a witness and the hearing was adjourned to schedule Korines' testimony. Id. at 72.
Plaintiff also presented Liberty with a copy of a grievance concerning the confiscation of his photographs. Id. at 66. Liberty restated the original photographs could not be located and found Plaintiff's grievance otherwise irrelevant. Id. at 67-69.
On April 18, 2016, Korines, who had been promoted to Sergeant, testified telephonically. Id. at 75. Generally, Korines testified about the events resulting in the September 11, 2014, misbehavior report. Id. at 76-77. Although he could no longer recall certain details of the search and the photographs, Korines affirmed the accuracy of September 11, 2014, misbehavior report. Id. at 76-84. Plaintiff had the opportunity to question Korines. Id. at 82-85. Plaintiff again objected to the missing photographs and requested to call the Attorney General as a witness, which Liberty denied as futile and irrelevant. Id. at 85-91.
The hearing resumed on April 19, 2016. Id. at 91. Plaintiff requested the testimony of Sgt. Lange and C.O. Bandell, who had searched his property at Shawangunk on September 9, 2014, two days prior to the misbehavior report. Id. at 91-96. Liberty reserved her decision on Bandell. Id. at 96.
Liberty stated she was calling Kober to testify and Plaintiff objected to Kober's testimony as redundant. Id. Liberty noted Plaintiff's objection and, after a brief adjournment, Kober testified telephonically. Id. at 96-97. Kober testified the scanned images he received from Liberty were accurate depictions of the photographs he had reviewed in September of 2014. Id. During Kober's testimony, Liberty reminded Plaintiff on multiple occasions not to interrupt and make hand gestures while she was questioning a witness. Id. at 97, 100. She warned Plaintiff if he continued to be disruptive, he would be excluded from the hearing:
CHO Liberty: Okay, thank you. No Mr. Williams, I am asking questions. I will give you the opportunity. Please don't interrupt me again. I'm not going to warn me [sic] again. If you interrupt me, no you're interrupting me again even you're speaking lower, but you're still doing it. If you interrupt me again, I will consider it to be a disruption of the hearing process because now you've done it a couple times. Stop. If you continue to disrupt the hearing in this manner, you will be excluded from the hearing. The hearing will continue without you. There could be a penalty imposing the disposition if you're found guilty of any charges. Do you understand all of that?Id. at 100-101. Kober resumed testifying and Plaintiff interrupted:
Williams: I understand that but can I state my objection to this person being a witness is not certified.
CHO Liberty: After he answers the questions I have for him, you will be given the opportunity to place any objections on the record and ask any questions after I determine their appropriateness and relevance. Please stop interrupting. Thank you.
CHO Liberty: Okay, could you hold on one second?
ORC Kober: Sure.
CHO Liberty: Mr. Williams, you are flailing with your hands in the background it is very . . . stop. And now you're mouthing
words to me, stop. It's very distracting when I am trying to hear the testimony and you're flailing, making hand motions to the escort officer. I would appreciate it if you would listen to the testimony. You will be given the opportunity . . . Mr. Williams. Stop.Id. at 101 (alterations in original). Kober reviewed the images and identified the gang-related hand signs. Id. at 99-111. Plaintiff was permitted to ask Kober relevant questions, including whether DOCCS has a "list" of what is classified as gang-related material. Id. at 102-05. Kober responded he was not aware of any such list. Id. at 105-06. Kober admitted he did not personally know any of the individuals in the color scans, but could identify them as likely gang members by their actions and clothing. Id. at 106-08. Kober concluded his review of the color scans, identified the gang-related images, affirmed he had no information on the location of the original photographs, and confirmed that Plaintiff's nickname, as identified by DOCCS, was not itself "gang-related material." Id. at 107-111. After Kober's review of the images, Plaintiff asked to recall Healy, which Liberty denied as duplicative and redundant. Id. at 112-13.
Plaintiff argued Rule 105.13 was unconstitutionally vague because "there is not actual notice rectifying what hand gestures is prohibited . . . there is no notice of what is classified gang related material[.]" Id. at 113-14. Plaintiff argued the witnesses were speculating as to what was "gang related" and were biased. Id. at 114. Plaintiff raised numerous objections regarding the events surround the September 11, 2014, search. Id. at 114-121.
Liberty recalled Kober to testify regarding Plaintiff's exhibits, consisting primarily of magazine and newspaper images. Id. at 125. Plaintiff was permitted to ask relevant questions and raise objections. Id. at 126-29.
Williams: Are prisoners allowed to have pictures?
CHO Liberty: The question is are inmates allowed to have pictures, photos?Id. at 128-30 (alternations in original). Plaintiff also asked Kober questions regarding Rule 105.13, such as whether DOCCS has photographs to use for comparison to determine if an image is gang-related and whether the Crips are listed as an unauthorized organization. Id. at 134. Kober responded no to each question and stated that he has "received training that indicates that the Crips are among a number of unauthorized gangs" within DOCCS. Id. Plaintiff was permitted to ask Kober about the magazine and newspaper exhibits submitted by Plaintiff. Id. at 135-42.
Kober: In accordance with directive 4911, yes they are allowed to have pictures.
CHO Liberty: Okay.
Kober: For their personal property.
Williams: Does rule 105.13 suggest the complications of an inmate personal property?
CHO Liberty: I'm not going to allow the question. It's up to me to determine if there's substantial evidence that you violated 105.13. Um, the question I will allow . . . no, Mr. Williams . . .
Williams: (inaudible)
CHO Liberty: You've got your hand up like you're ready to stop me . . .
Williams: I just didn't want to . . .
CHO Liberty: Don't talk over me . . .
Williams: (inaudible—talking at same time) trynna say.
CHO Liberty: Alright. Stop. I'm not going to allow the question because that's, the rule is what it is. The rule speaks for itself. I've read the rule, the rule is part of the record. It's up to me whether or not there's substantial evidence that you violated the rule. So, move on to your next question.
After Kober's testimony, Plaintiff raised an objection concerning Healy's prior testimony and an alleged conversation between them off the record. Id. at 145. He requested to review the videotape of this alleged exchange and repeated his objections as to the applicability of Rule 105.13 to photographs and overall vagueness. Id. at 143-49. Because Plaintiff also claimed Kober's testimony against him was the result of personal prejudice, Liberty adjourned the hearing to recall Kober for further testimony. Id. at 149.
The proceeding resumed on April 26, 2016, during which time Kober affirmed that his testimony was truthful and accurate and not based on any personal prejudice against Plaintiff. Id. at 150-51. Thereafter, Liberty denied Plaintiff's request to recall Korines because Plaintiff did not specify any questions for Korines that had not already been answered. Id. at 155-56.
On April 27, 2016, Plaintiff wrote a letter to Superintendent Uhler, arguing Rule 105.13 is "unconstitutionally vague" because there are "no documents giving adequate notice of what specific hand gestures are prohibited" and, therefore, was denied "advance and actual" notice of the prohibitive conduct at the second disciplinary hearing. (Dkt. No. 50-4 at 43, emphasis in original.) By memorandum dated April 27, 2016, non-party P. Woodruff, Acting Superintendent, responded: I received your correspondence dated 4/27/16. Your objections need to made during the hearing in order for them to be placed on the record. No further action will be taken by this office at this time." Id. at 45.
The hearing continued on April 28, 2014, with Lange testifying that he had no recollection of Plaintiff, the incident recorded in the misbehavior report, or serving as Plaintiff's employee assistant for the first disciplinary hearing. Id. at 159-61. Throughout his testimony, which consisted mostly of testimony regarding search procedures and the disposition of contraband generally, Plaintiff interrupted Liberty on multiple occasions. Id. at 167-83. After each interruption, Plaintiff was warned:
CHO Liberty: No. Mr. Williams do not tell me to hold on! You are being so rude to me! Mr. Williams I need you . . . . No, I need you to not talk right now. I'm asking the Sergeant and you tell me to hold on, hold on and then you bring up all of these other things. I'm asking questions. Let me do that. Thank you.Id. at 171. After another interruption:
CHO Liberty: Mr. Williams, please stop. I still wasn't done asking questions. I know that's your objection, but again, you interrupted my questioning. Now I appreciate your ability to bring objections but please let me ask the questions without interrupting me mid-questioning. I will give you the opportunity to make your objections to ask questions, to tell me the relevance to each document presented. Can I speak to the witness now? I'm going to take your silence that you understand that I would like you to stop interrupting me. Thank you.Id. at 172. Plaintiff interrupted again:
CHO Liberty: That's your last warning Mr. Williams. Next time you interrupt me you're going to be removed from the hearing. I'm going to complete the hearing without. A penalty may be imposed in the disposition. Do you understand that?Id. at 178-79. Before adjourning for the day, Liberty granted Plaintiff's request to read and submit a three-page document titled "statement in support of defense" into the record. Id. at 183-87.
Williams: Yes.
The hearing resumed on May 2, 2016, with Korines testifying telephonically. Id. at 193. Korines confirmed that the copies of the color scans Liberty had sent to him were accurate reproductions of some of the photographs he had confiscated in 2014. Id. at 193-94. Korines further testified he had not interacted with Plaintiff before conducting the September 11, 2014, search and affirmed the misbehavior report was not the result of any personal prejudice or bias. Id. at 194.
Liberty recalled Healy. Id. at 203. Healy confirmed he escorted Plaintiff to his cell on April 8, 2016, and affirmed that his earlier testimony had been accurate and truthful. Id. Plaintiff objected and claimed Healy told him the misbehavior report was "bullshit" and Shawangunk staff wanted Plaintiff transferred out of that facility. Id. At Plaintiff's request, a DVD of the escort at issue was reviewed, but the audio was not clear. Id. at 206-07. Healy had no recollection of the substance of their conversation. Id. at 207.
On May 9, 2016, Teacher Isabella, a DOCCS employee at Upstate also trained in identifying gang-related material, testified. Id. Isabella reviewed the nine images and, notwithstanding the poor qualify of the color scans, confirmed that some of the images depicted persons using gang-related hand gestures. Id. at 210-11. Plaintiff interrupted Liberty's questions; Liberty reminded Plaintiff not to interrupt and warned he would be removed for the remainder of the hearing. Id. at 212.
Plaintiff objected to the fact that the images shown Isabella had been previously marked with circles, which would influence his testimony and rendered him a biased witness. Id. at 212-15. During Isabella's testimony, Plaintiff interrupted several times and "wagged" his finger at Liberty. Id. at 215-16. After another contentious exchange, Liberty warned:
CHO Liberty: I've had enough of the arguing with me. This is your last warning. That's it.
Williams: You're warning me. I'm trying to speak and you're speaking over me.
CHO Liberty: What is your next question Mr. Williams?
Williams: That's what I'm askin. Can I speak and you're speaking over me. Every time I trynna say something you start . . .
CHO Liberty: Alright that's it. I . . . seriously you're disrupt, you're disrupting the hearing process. I've asked you five times now what the next question is and you haven't identified it. Please
remove Mr. Williams from the hearing.Id. at 216 (alterations and errors in original). Liberty resumed questioning Isabella, who testified that regardless of the circled hand gestures, it was self-evident that some of the individuals in the images were using gang gestures and were wearing blue clothing associated with the Crips. Id. at 217. After showing Isabella Plaintiff's magazine and newspaper exhibits, Liberty asked if he found any difference between the gestures in the color scans and the gestures in Plaintiff's exhibits. Id. at 218. Teacher Isabella responded it was about "intent." Id.
Williams: Note my objection!
CHO Liberty: You're [sic] objection is noted.
Williams: You didn't give me back my documents either!
CHO Liberty: You'll get them with your disposition after the hearing.
Williams: Wooo! (inaudible)
CHO Liberty: Note for the record Mr. Williams just said "Woo got her!" as he left the room.
Liberty then explained her reasoning for removing Plaintiff from the hearing and denying Plaintiff's remaining witnesses. Id. at 219-21. She adjourned the hearing to review the evidence and render her decision. Id. at 221.
Later that day, Liberty read her decision and statement of evidence relied upon into the record, and included the typed document, along with the completed hearing record sheet, in the hearing packet. Id. at 221-28. Liberty found Plaintiff guilty of violating Rule 105.13 and imposed a penalty of six months in the SHU, with a corresponding loss of packages, commissary, and telephones. Id. at 222, 224-25. She noted that a review of Plaintiff's disciplinary records showed this was his fourth violation of Rule 105.13. Id. at 225. Liberty indicated the penalty had already been served from September 25, 2014, though March 25, 2015. (Dkt. No. 45-16 at ¶ 62.)
Plaintiff appealed. (Dkt. No. 45-22 at ¶ 39; Dkt. No. 45-18 at ¶¶ 6, 7; see also Dkt. No. 50-4 at 46, 52-53.) On July 14, 2016, Defendant Rodriguez, Acting Director of Special Housing/Inmate Disciplinary Program, affirmed Liberty's determination. (Dkt. No. 45-18 at ¶ 10.) On August 22, 2016, Plaintiff asked Rodriguez to reconsider his decision affirming Liberty's guilty determination. (Dkt. No. 50-4 at 55.) Plaintiff also wrote a letter to non-party Deputy Commissioner Bellnier, arguing he was found guilty of violating an unconstitutionally vague rule that "in no way" provided adequate notice of what is prohibited conduct. Id. at 57-59.
Almost two years later, on August 1, 2018, Venettozi administratively reversed and expunged the guilty disposition rendered at the second disciplinary hearing. (Dkt. No. 50-8.) The August 1, 2018, determination states:
On August 10, 2018, the Court granted Plaintiff's August 7, 2018, letter request seeking to attach the August 1, 2018, determination as an addendum to Plaintiff's opposition response. (Dkt. Nos. 55, 56.)
ON BEHALF OF THE COMMISSIONER AND IN RESPONSE TO A LETTER OF RECONSIDERATION, PLEASE BE ADVISED THAT YOUR SUPERINTENDENT'S HEARING OF MAY 9, 2016, HAS BEEN REVIEWED AND ADMINISTRATIVELY REVERSED ON AUGUST 1, 2018.(Dkt. No. 50-8.) The Court notes the decision is stamped "EXPUNGED." Id. at 2.
Based on the foregoing, Plaintiff alleges the confiscation of his personal photographs violated his First Amendment right to freedom of expression and that he was subjected to disciplinary proceedings in violation of his due process rights. (See generally Dkt. No. 16.) Plaintiff alleges Annucci, Rodriguez, Smith, and Uhler were aware of the ongoing constitutional violations and failed to prevent them from continuing. Id. Plaintiff also claims Korines, Kober, and Pingotti conspired to confiscate his photographs and subject him to improper discipline in violation of his constitutional rights. Id.
Defendants now move for summary judgment. (Dkt. No. 45.) Plaintiff has opposed the motion and Defendants have filed a reply. (Dkt. Nos. 50, 51.) Plaintiff's sur-reply (Dkt. No. 52) was stricken from the record and, therefore, the Court will not consider it. (Dkt. No. 53.)
III. APPLICABLE LEGAL STANDARD FOR SUMMARY JUDGMENT
Summary judgment may be granted only if the submissions of the parties taken together "show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The party moving for summary judgment bears the initial burden of showing, through the production of admissible evidence, that no genuine issue of material fact exists. Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir. 2006). A dispute of fact is "genuine" if "the [record] evidence is such that a reasonable jury could return a verdict for the nonmoving party." Liberty Lobby, 477 U.S. at 248.
Only after the moving party has met this burden is the nonmoving party required to produce evidence demonstrating that genuine issues of material fact exist. Salahuddin, 467 F.3d at 272-73. The nonmoving party must do more than "rest upon the mere allegations . . . of the [plaintiff's] pleading" or "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986). "Conclusory allegations, conjecture and speculation . . . are insufficient to create a genuine issue of fact." Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998).
A party opposing summary judgment is required to submit admissible evidence. See Spiegel v. Schulmann, 604 F.3d 72, 81 (2d Cir. 2010) ("It is well established that in determining the appropriateness of a grant of summary judgment, [the court] . . . may rely only on admissible evidence.") (citation and internal quotation marks omitted). A plaintiff's verified complaint is to be treated as an affidavit. Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995) ("A verified complaint is to be treated as an affidavit . . . and therefore will be considered in determining whether material issues of fact exist . . . .") (citations omitted).
In Jeffreys v. City of New York, the Second Circuit reminded that on summary judgment motions "[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." 426 F.3d 549, 554 (2d Cir. 2005). "To defeat summary judgment, . . . nonmoving parties may not rely on conclusory allegations or unsubstantiated speculation." Id. (citation and internal quotation marks omitted). "At the summary judgment stage, a nonmoving party must offer some hard evidence showing that its version of the events is not wholly fanciful." Id. (citation and internal quotation marks omitted). "To satisfy Rule 56(e), affidavits must be based upon 'concrete particulars,' not conclusory allegations." Schwapp v. Town of Avon, 118 F.3d 106, 111 (2d Cir. 1997) (citation omitted); Smith v. Woods, No. 9:03-CV-480 (DNH/GHL), 2006 WL 1133247, at *3 & n.10 (N.D.N.Y. Apr. 24, 2006). "Statements that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment." Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999).
The Court will provide Plaintiff with copies of all unpublished decisions cited herein in accordance with the Second Circuit's decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
In determining whether a genuine issue of material fact exists, the court must resolve all ambiguities and draw all reasonable inferences against the moving party. Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008). "[T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at the point to issue-finding; it does not extend to issue-resolution." Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994).
Where a party is proceeding pro se, the court is obliged to "read [the pro se party's] supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). However, "a pro se party's 'bald assertion,' unsupported by evidence, is not sufficient to overcome a motion for summary judgment." Cole v. Artuz, No. 93 Civ. 5981 (WHP)(JCF), 1999 WL 983876, at *3 (S.D.N.Y. Oct. 28, 1999) (citing Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)).
IV. DISCUSSION
A. Fourteenth Amendment
In order to prove that procedural due process rights were violated, a plaintiff must show that he was deprived of a cognizable liberty or property interest without due process of law. McKithen v. Brown, 626 F.3d 143, 151 (2d Cir. 2010). An inmate has a liberty interest in remaining free from a confinement or restraint where the confinement or restraint imposes an "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 484 (1995); Tellier v. Fields, 280 F.3d 69, 80 (2d Cir. 2000); Frazier v. Coughlin, 81 F.3d 313, 317 (2d Cir. 1996).
1. Liberty Interest
The Second Circuit has declined to provide a bright-line rule as to what duration of punitive confinement implicates a prisoner's constitutional rights; however, general guidelines have been defined. J.S. v. T'Kach, 714 F.3d 99, 106 (2d Cir. 2013). Relevant to this action, "[a] period of confinement between 101 and 305 days is considered to be an 'intermediate duration' and could implicate a liberty interest should a detailed record of the conditions of confinement indicate that it was an atypical and significant hardship." Bunting v. Nagy, 452 F. Supp. 2d 447, 456 (S.D.N.Y. 2006) (citation omitted); Palmer v. Richards, 364 F.3d 60, 64-65 (2d Cir. 2004).
For purposes of this motion, Defendants concede and the Court assumes, that the penalty imposed, six months in the SHU, implicated a liberty interest. (See Dkt. No. 45-23 at 7 n.4.)
2. Due Process
Due process is satisfied if an inmate facing disciplinary charges receives (1) advanced written notice of the charges against him; (2) a hearing affording him a reasonable opportunity to call witnesses and present documentary evidence; (3) a fair and impartial hearing officer; and (4) a written statement of the disposition, including the evidence relied upon and the reasons for the disciplinary actions taken. Sira v. Morton, 380 F.3d 57, 69 (2d Cir. 2004) (citing Wolff v. McDonnell, 418 U.S. 539, 563-67 (1974)); Luna v. Pico, 356 F.3d 481, 487 (2d Cir. 2004). The hearing officer's findings must be supported by "some" "reliable evidence." Id. (citing, inter alia, Superintendent v. Hill, 472 U.S. 445, 455 (1985)).
3. Notice
"Due process requires prison officials to provide inmates with adequate notice of what conduct is prohibited." Booker v. Maly, No. 9:12-CV-246 (NAM/ATB), 2014 WL 1289579, at *7 (N.D.N.Y. Mar. 31, 2014) (citations omitted), aff'd 590 F. App'x 82, 82-83 (2015) (summary order). "The underlying rationale . . . [is that] inmates must be free to avoid prohibited conduct, and prison regulations must therefore place them on notice . . . ."). Williams v. Fischer, No. 08-CV-413 (TJM/DRH), 2010 WL 3910129, at *10 (N.D.N.Y. Aug. 17, 2010). As disused below, in Booker v. Maly, a case with striking similarities to the pending action, the District Court found Rule 105.13 was not unconstitutionally vague. 2014 WL 1289579, at *1, 7, aff'd 590 F. App'x at 82-83.
4. Analysis
Plaintiff alleges a host of due process violations during his first and second disciplinary hearings, including lack of advance notice, hearing officer bias, being denied witnesses and documentary evidence, and being capriciously removed from the second hearing. (Dkt. No. 16 at 10-16.)
a. First Disciplinary Hearing is Moot
Plaintiff alleges he was denied due process at the first disciplinary hearing conducted by Pingotti. (Dkt. No. 16 at 10-12.) Defendants argue Plaintiff's claims related to the first disciplinary hearing are moot because the decision and order granting Plaintiff relief under Article 78 expunged Plaintiff's record of the September 28, 2014, guilty finding, and remanded the proceeding for a rehearing. (Dkt. No. 45-23 at 7 n.5.) The Court agrees with Defendants. See Ramos v. Chappius, No. 15-CV-6600-FPG, 2018 WL 488950, at *2 (W.D.N.Y. Jan. 1, 2018) ("Although Plaintiff asserts that Defendants violated his rights at the First Hearing, that hearing became null as a result of the Second Hearing.") (citing Horne v. Coughlin, 155 F.3d 26, 31 (2d Cir. 1998) ("We need not discuss [the plaintiff's] contention that his rights were violated at the first hearing, because it became a nullity. All findings and penalties imposed at the first hearing were vacated, and all the penalties [the plaintiff] suffered were imposed at the second hearing.")).
Here, because Plaintiff's SHU confinement resulting from the first disciplinary hearing was credited to the penalty imposed at the second disciplinary hearing, the evidence demonstrates Plaintiff's confinement "was entirely attributed to the ruling following the second hearing" conducted by Liberty. See Gaston v. Coughlin, 249 F.3d 156, 164 (2d Cir. 2001). "Accordingly, the result of the first hearing did not deprive [Plaintiff] of due process." Id.; see also Cole v. New York State Dep't of Corrections and Community Supervision, No. 9:14-CV-0539 (BKS/DEP), 2016 WL 5394752, at *20-21 (N.D.N.Y. Aug. 25, 2016) (finding it unnecessary to determine whether the plaintiff was afforded due process in connection with the first hearing, where the record established that plaintiff was confined in the SHU as a result of a penalty imposed which was ultimately reversed and where the plaintiff was again found guilty at the second disciplinary hearing), report and recommendation adopted by 2016 WL 5374125, at *1 (N.D.N.Y. Sept. 25, 2016).
Therefore, the Court recommends dismissing Plaintiff's due process claim based on the first disciplinary hearing. Even assuming, arguendo, Plaintiff's first disciplinary hearing was not rendered a nullity, as set forth below, the Court finds Plaintiff was afforded the minimum requirements of due process.
b. Advance Notice of Charges
An accused prisoner has the right to be provided with advanced written notice of the charges brought against him. Sira, 380 F.3d at 69.
Here, it is undisputed that Plaintiff received a copy of the September 11, 2014, misbehavior report on September 12, 2014, and again on March 26, 2016. (Dkt. No. 45-7 at 2.) Contrary to Plaintiff's contention, the misbehavior report was not "barren of any particulars." (See Dkt. No. 16 at 8.) The misbehavior report specifies Plaintiff violated Rule "105.13-Gangs." Id. at 25. The explanation states Korines was asked to search Plaintiff's personal property on September 11, 2014, and that during the course of that search, sixteen photographs were found "with people showing hand sings." Id. The report further indicates Korines was advised Plaintiff goes by the name "Cike Bike" and has previously been identified as a member of the Crips. Id. Upon review, the sixteen photographs were found to be pictures "related to a gang known as the Crips, in violation of rule 105.13." Id.
Thus, the Court finds Plaintiff had "advance notice of the charges" as "required for procedural due process." Booker, 2014 WL 1289579, at *8 (emphasis in original) (finding advance notice for procedural due process where the misbehavior report charged the inmate with violating Rule 105.13 after a search of the inmate's property revealed five photographs that were said be "gang-related material").
c. Witness/Documentary Evidence
An accused prisoner has the right to a hearing where he is given a reasonable opportunity to call witnesses and present documentary evidence. Sira, 380 F.3d at 69.
Plaintiff claims Pingotti denied two witness, ORC McCarthy and Sgt. Cochran, in violation of his due process rights. Although due process includes a right to call witnesses, this right is not unfettered. Alicea v. Howell, 387 F. Supp. 2d 227, 234 (W.D.N.Y. 2005) (citing Ponte v. Real, 471 U.S. 491, 495 (1985)). This right may be limited for security reasons, to keep a hearing within reasonable limits, or on the basis of irrelevance or lack of necessity. Id. (citing, inter alia, Kingsley v. Bureau of Prisons, 937 F.2d 26, 30 (2d Cir. 1991) (a hearing officer does not violate due process by excluding irrelevant or unnecessary testimony or evidence)); see also Eleby v. Selsky, 682 F. Supp. 2d 289, 291-92 (W.D.N.Y. 2010) (hearing officers have discretion to keep the hearing within reasonable limits, and "included within that discretion is the authority to refuse to call witnesses whose testimony the prison official reasonably regards as duplicative or non-probative").
Here, Pingotti determined the testimony of ORC McCarthy and Sgt. Cochran would be redundant in light of Kober's testimony, who had training in identifying gang-related materials and had already viewed and commented on the photographs. (Dkt. No. 45-7 at 75.) Pingotti's decision was well within the discretion of a hearing officer and comports with procedural due process. See Kalwasinksi v. Morse, 201 F.3d 103, 108-09 (2d Cir. 19990 (holding "a hearing officer does not violate due process by excluding irrelevant or unnecessary testimony"). Plaintiff does not allege, and the record does not support, that he was denied any witnesses in violation of his due process rights during the second disciplinary hearing.
Turing to the documentary evidence, the record demonstrates Plaintiff presented a wide range of documentary evidence at both disciplinary hearings, including SHU log book entries, magazine and newspaper images, excerpts of DOCCS Correction Laws and Directives, a three page written statement, contraband receipts and inventory notices, copies of grievance documents, a 2008 DOCCS memorandum addressing Rule 105.13, and a signed receipt for Rule 105.13. (Dkt. Nos. 45-4 at 9; 45-7 at 4-5.)
As to Plaintiff's claim he was denied the right to present "untainted" documentary evidence at the second disciplinary hearing, the record demonstrates only color scans of the original confiscated photographs were available for review. (Dkt. No. at 45-16 at ¶¶ 7, 9, 10.) Further, while Plaintiff objected to the quality of the color scans, he nonetheless admitted they were accurate reproductions of his photographs. (Dkt. No. 45-8 at 149-51.) Korines also testified the color scans were accurate reproductions of nine of the sixteen confiscated photographs. Id. at 193-94. Furthermore, Kober, Healy, and Isabella, all of whom testified regarding their training in identifying gang-related materials, were able to identify the hand gestures at issues as gang-related in some of the color scans. (Dkt. No. 45-8 at 149-51.)
Regarding Plaintiff's objection that the color scans had been marked up prior to Isabella's testimony, the Court agrees with Defendants that the circling of certain gestures was not prejudicial as Isabella testified it was "self evident" that some of the individuals in the color scans were using gang-related gestures and were wearing blue clothing associated with the Crips. (Dkt. No. 45-16 at ¶ 65.) See, e.g., Clark v. Dannheim, 590 F. Supp. 2d 429, 429 (W.D.N.Y. 2008) (citing, inter alia, Powell v. Coughlin, 953 F.2d 744, 750 (2d Cir. 1991) ("[I]t is entirely inappropriate to overturn the outcome of a prison disciplinary hearing because of a procedural error without making the normal appellate assessment as to whether the error was harmless or prejudicial.")).
As to Plaintiff's claim he was denied copies grievances filed in 2014 at Shawangunk, "due process does not require that a prisoner be provided with all the documentary evidence he has requested." Lebron v. Artus, No. 06-CV-0532 (VEB), 2008 WL 111194, at *9 (W.D.N.Y. Jan. 9, 2008). Liberty explained her reasons for finding the requested material irrelevant to the charge at issue. (Dkt. No. 45-8 at 66-68.) Moreover, Liberty recalled several witnesses in response to Plaintiff's allegation of bias. Id. at 149-51.
In light of the foregoing, the Court finds no triable issue of fact exists as to whether Plaintiff had a reasonable opportunity to call witnesses and present documentary evidence.
d. Hearing Officer Bias
"An inmate subject to a disciplinary proceeding is entitled to an impartial hearing officer." Allen v. Cuomo, 100 F.3d at 253, 259 (2d Cir. 1996); Sira, 380 F.3d at 69. An impartial hearing officer is "one who, inter alia, does not prejudge the evidence and who cannot say . . . how he would assess the evidence he has not yet seen." Patterson v. Coughlin, 905 F.2d 564, 569-70 (2d Cir. 1990); Francis v. Coughlin, 891 F.2d 43, 46 (2d Cir. 1989) ("it would be improper for prison officials to decide the disposition of a case before it was heard")' see also Espinal v. Goord, 180 F. Supp. 2d 532, 539 (S.D.N.Y. 2002) ("The degree of impartiality required of prison hearing officials does not rise to the level of that required of judges generally.").
Due process in this context requires only that the hearing officer's decision not be "arbitrary." Wolff, 418 U.S. at 571. A decision is not "arbitrary" if it is supported by "some evidence." Superintendent, 472 U.S. at 455. "This standard is extremely tolerant and is satisfied 'if there is any evidence in the record that supports' the disciplinary ruling." Sira, 380 F.3d at 69 (emphasis in original) (quoting Friedl v. City of New York, 210 F.3d 79, 85 (2d Cir. 2000)). In the Second Circuit, the "some evidence" standard requires some "reliable evidence." Luna v. Pico, 356 F.3d 481, 488 (2d Cir. 2004).
Here, the record evidence demonstrates there was "some evidence" that Plaintiff violated Rule 105.13. In their written determinations, the hearing officers set forth the evidence upon which their guilty determinations were based, including the September 11, 2014, misbehavior report and the testimony of Korines and Kober. See Hinton v. Prack, No. 9:12-CV-1844 (LEK/RFT), 2014 WL 4627120, at *15 (N.D.N.Y. Sept.11, 2014) (citation omitted) ("some evidence" standard satisfied where the misbehavior report was made by the officer personally involved in the incident and was based upon his first hand observation and detailed account of the incident); see also Creech v. Schoellkoph, 688 F. Supp. 2d 205, 214 (W.D.N.Y. 2010) (same). Further, Liberty also relied on the testimony of Healy and Isabella, both of whom testified as to their training in identifying gang-related materials, and whose testimony was generally consistent with Kober. (Dkt. No. 45-8 at 223.)
Moreover, prison officials "enjoy a rebuttable presumption that they are unbiased." Rodriguez v. Selsky, No. 9:07-CV-0432 (LEK/DEP), 2011 WL 1086001, at *11 (N.D.N.Y. Jan. 25, 2011) (citation omitted). Indeed, "[a]n inmate's own subjective belief that the hearing officer was biased is insufficient to create a genuine issue of material fact." Johnson v. Fernandez, No. 9:09 CV-626 (FJS/ATB), 2011 WL 7629513, at *11 (N.D.N.Y. Mar. 12, 2011) (citing Francis, 891 F.2d at 46). A plaintiff's disagreement with a hearing officer's ruling alone does not give rise to a finding of bias. See Johnson, No. 9:05-CV-376 (TJM/RFT), 2007 WL 3046701, at *10 (N.D.N.Y. Oct. 17, 2007) (finding hostile exchanges between plaintiff and the hearing officer throughout the proceeding and adverse rulings did not constitute bias where plaintiff was otherwise provided the opportunity to testify, call witnesses, and raise objections).
Here, there is no record evidence from which a reasonable factfinder could conclude that Pingotti or Liberty were biased against Plaintiff or that they predetermined the outcome of the disciplinary hearings. As set forth above, Plaintiff was afforded the opportunity to testify, question witnesses, and raise objections. (See Dkt. Nos. 45-5; 45-8.) Indeed, the hearing officers heard extensive testimony from several witnesses, including several trained in identifying gang-related material, over the course of several days. While Pingotti and Liberty limited questions, witnesses, and documentary evidence, there is no record evidence to suggest that either did so out of bias towards Plaintiff.
In short, Plaintiff's bare conclusory and assertions with respect to the hearing officers' bias are unsupported and belied by the record. See Francis, 891 F.2d at 47 ("[A] plaintiff-inmate armed with nothing more than conclusory allegations of bias and prejudgment should not be able to defeat a well-supported motion for summary judgment[.]"). Although their decisions were ultimately administratively reversed and expunged, upon review of the record evidence, the Court finds "some evidence" to support Pingotti's and Liberty's guilty determinations. See Sira, 380 F.3d at 76 n. 9 (noting the director's reversal of the disciplinary ruling does not automatically establish a federal claim") (quoting Foster v. Coughlin, 76 N.Y.2d 964, 966 (1990)); Alicea, 387 F. Supp. 2d at 232-33 (same); Moore v. Griffin, No. 9:13-CV-616 (FJS/TWD), 2015 WL 5330366, at *12 (N.D.N.Y. Sept. 11, 2015) ("While the guilty determination was later reversed, there was "some evidence" to support [the hearing officer's] decision that [the plaintiff] was guilty of the charges set forth in the misbehavior report."); see also Shabazz v. Bezio, No. 9:10-CV-1212 (NAM/DEP), 2014 WL 4794432, at *2 (N.D.N.Y. Sept. 25, 2014) (finding "some evidence" to support the hearing officer's guilty determination that was later reversed on appeal).
e. Removal from Hearing
Plaintiff claims Liberty "capriciously" removed him from the hearing in violation of his right to due process. (Dkt. No. 16 at 18.) Defendants argue Plaintiff was given repeated warnings to stop being disruptive and interrupting the hearing and was removed for failing to abide by those warnings. (Dkt. No. 45-23 at 10-11.)
"The Second Circuit had not conclusively resolved whether an inmate has a due process right to be present at disciplinary proceedings, and district courts within the circuit have issued varying opinions regarding the issue." Cole v. DOCCS, 2016 WL 5394752, at *22. However, even those courts that recognized a right to be physically present at the hearing have limited that right to allow an inmate to be removed if he engages in disruptive behavior. See, e.g., Sheils v. Minogue, No. 9:06-CV-482 (GLS/RFT), 2010 WL 5625919, at *6 (N.D.N.Y. Nov. 1, 2010) ("There is no due process violation when a hearing officer is forced to remove an obstreperous inmate from disciplinary proceedings."); Clark v. Dannheim, No. 02-CV-6525L, 2011 WL 2973687, at *1 (W.D.N.Y. 2011) (collecting cases) ("[W]here an inmate disrupts a hearing, a hearing officer has discretion to order the inmate removed, particularly if the prisoner has been warned that continued unruly behavior may result in his expulsion."); Mims v. Ufland, No. 07 Civ. 1926 (DCL), 2008 WL 2986497, at *5 (S.D.N.Y. Aug. 1, 2008) (holding the limited right to be present at the hearing is not absolute, and can be waived if the inmate engages in disruptive behavior).
Here, the record demonstrates Liberty removed Plaintiff from the second disciplinary hearing only after he repeatedly disregarded her instructions and warnings. (Dkt. No. 45-8 at 100-03, 178, 212-16.) In light of the foregoing, the Court finds no reasonable juror could find Liberty capriciously removed Plaintiff from the second disciplinary hearing.
Additionally, because neither the Supreme Court nor the Second Circuit has clearly established the right of prisoners to be present at a disciplinary hearing, the Court also recommends finding Liberty is entitled to qualified immunity. See Vogelfang v. Capra, 889 F. Supp. 2d 489, 514 (S.D.N.Y. 2012) ("[T]his Court finds it to be an open question in the Second Circuit whether there is an independent right of a prisoner to be present at all times during a disciplinary hearing, or whether such a right to be present exists only insofar as it is required to enable the prisoner to exercise his or her rights to call witnesses or present documentary evidence.").
Here, as was the case in Cole v. DOCCS, the Court finds a person in Liberty's position could have reasonably concluded that excluding Plaintiff from the hearing would not violate any clearly established constitutional right. Therefore, even assuming Plaintiff is able to establish a constitutional violation based on his removal from the hearing, the Court also recommends finding Liberty entitled to qualified immunity.
f. Vagueness
Plaintiff also claims that his Fourteenth Amendment due process rights were violated because Rule 105.13 is "unconstitutionally vague as applied to him, and it fails to give adequate notice of what conduct is prohibited . . . ." (Dkt. No. 16 at 6-10.)
"It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined." Grayned v. City of Rockland, 408 U.S. 104, 108 (1972). Due process vagueness challenges to prison disciplinary rules and directives have been recognized in the Second Circuit. Chatin v. Coombe, 186 F.3d 82, 88-89 (2d Cir. 1999); Leitzsey v. Coombe, 998 F. Supp. 282, 289 (W.D.N.Y. 1998) ("inmates must be free to avoid prohibited conduct, and prison regulations must therefore place them on notice of the actions that could subject them to discipline").
"A disciplinary rule 'is unconstitutionally vague if persons of common intelligence must necessarily guess at its meaning and differ as to its application, or if it fails to give a person of ordinary intelligence fair notice of conduct proscribed or required by the regulation and encourages arbitrary and erratic behavior on the part of the officials charged with enforcing the rule.'" Booker, 2014 WL 1289579, at *7 (quoting Williams v. Fischer, 2010 WL 3910129, at *10 (citing Giano v. Senkowski, 54 F.3d 1050, 1057 (2d Cir. 1995))). Indeed, upon review of Rule 105.13 in a factually similar challenge, the court in Booker found "that the prohibited conduct is clear to a person of average intelligence." Id. at *12.
In Booker, the plaintiff was charged with possession of five photographs said to be "gang-related material" in violation of Rule 105.13. 2014 WL 1289579, at *8. During his disciplinary hearing, Booker, like Plaintiff in this action, spent a great deal of time arguing that there was no specific criteria to establish whether an inmate's property contained "gang-related" material or depicted gang signs. Id. Booker challenged the constitutionality of Rule 105.13, arguing it did not "set forth specific criteria for determining whether a gesture is a gang sign or whether it simply was 'cultural expression.'" Id. at *12. The court disagreed:
It is quite clear, according to the rule, that a gang sign is something that another inmate would recognize as creating an inference of a particular gang affiliation. More specificity in the prison context would be impossible because . . . individuals could change the signs to avoid detection, interfering with the security of the facility.Id. After an in-depth discussion of an inmate's challenge to a similar Connecticut rule, the court found Rule 105.13 was not unconstitutionally vague because it "gives inmates the definition of gangs and of gang-related materials" and noted "more specificity is not required, and would be very difficult, given the number of gangs and the different methods of symbolic communication that exist." Id. at *13 (internal footnote omitted). The court further noted "[t]he fact that plaintiff may have been able to possess those pictures at other facilities does not undermine the defendants' desire to regulate gang-related material at their facility." Id.
Upon review and for the reasons discussed above, this Court agrees with the reasoning in Booker, and finds Rule 105.13 is not unconstitutionally vague.
Based on the foregoing, the Court finds Plaintiff was afforded the minimum requirements for procedural and substantive due process under the Fourteenth Amendment. Therefore, the Court recommends that Defendants' motion for summary judgment on Plaintiff's Fourteenth Amendment claims be granted.
B. First Amendment
Plaintiff claims that the confiscation of his personal photographs also violated his First Amendment right to freedom of expression. (Dkt. No. 16 at 10-12.) Liberally construed, Plaintiff claims Rule 105.13 is unconstitutional; in the alternative, Plaintiff claims Rule 105.13 affords no basis for the characterization of his photographs as gang-related material; and, accordingly, the confiscation of his photographs was not authorized by legitimate penological interests. (Dkt. Nos. 10 at 9, 15 at 3.) Defendants argue Rule 105.13 does not violate the First Amendment as it is reasonably related to the legitimate penological interest of maintaining security and order in facilities. (Dkt. No. 45-12 at 12-15.) The Court agrees with Defendants.
Although "[p]rison officials must be free to seize from cells any articles which, in their view, disserve legitimate institutional interests," Hudson v. Palmer, 468 U.S. 517, 528 n.8 (1984), an inmate retains "those First Amendment rights that are not inconsistent with his status as a prisoner" or the state's legitimate penological interests. Giano v. Senkowski, 54 F.3d 1050, 1053 (2d Cir. 1995) (citation omitted). "[W]hen a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." Turner v. Safley, 482 U.S. 78, 89 (1987); see Benjamin v. Coughlin, 905 F.2d 571, 574 (2d Cir. 1990) (stating that "[t]he governing standard is one of reasonableness . . . .").
The reasonableness of a prison regulation is measured using the three-step analysis outlined in Turner. See Shakur v. Selsky, 391 F.3d 106, 113-14 (2d Cir. 2004). First, the court must ask "whether the governmental objective underlying the regulations at issue is legitimate and neutral, and [whether] the regulations are rationally related to that objective." Thornburgh v. Abbott, 490 U.S. 401, 414 (1989). Second, the court looks to see "whether there are alternative means of exercising the right that remain open to prison inmates." Id. at 417 (citation omitted). Third, the court examines "the impact that accommodation of the asserted constitutional right will have on others (guards and inmates) in the prison." Id. at 418 (citation omitted). "The prisoner-plaintiff bears the burden of proving that [a] disputed regulation is unreasonable." Giano v. Senkowski, 54 F.3d 1050, 1054 (2d Cir. 1995) (citations omitted).
The Supreme Court has advised that prison 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. See Procunier v. Martinez, 416 U.S. 396, 404-05 (1974); Thornburgh v. Abbott, 490 U.S. 401, 408 (1989). Thus, the Court has upheld regulations that prohibit inmates from engaging in activities that would be permissible and protected outside of prison. See Thornburgh, 490 U.S. at 419 (upholding regulation that limits prisoners' receipt of publications that threaten prison security); Turner, 482 U.S. at 78 (upholding regulations that restrict correspondence between inmates of different correctional facilities). Additionally, the Second Circuit has upheld a content-based limitation, the sole purpose of which was to maintain security and deter violence among inmates. See Giano, 54 F.3d at 1054-55 (upholding regulation that prohibited inmates from possessing nude or semi-nude photographs of spouses or girlfriends).
Here, the Court finds the confiscation of the photographs at issue did not violate Plaintiff's First Amendment right. While they are of a different character than the photographs at issue in Giano, the photographs seized from Plaintiff present their own challenges to prison order and security. See Self-Allah v. Annucci, No. 97-CV-607(H), 1998 WL 912008, at *3 (W.D.N.Y. Oct. 14, 1998) ("Efforts to end gang-related activity in penal institutions and fostering institutional security are legitimate penological interest."); see also Michel v. Manna, No. 9:15-CV-1187 (DNH/ATB), 2017 WL 1381859, at *5 (N.D.N.Y. Jan. 17, 2017) (finding grooming policy rationally related to legitimate interest in preventing displaying of gang signs or symbols), report and recommendation adopted by 2017 WL 1380583, at *1 (N.D.N.Y. Apr. 17, 2017); Alameen v. Coughlin, 892 F. Supp. 440, 451 (E.D.N.Y. 1995) (upholding regulation prohibiting the display of black beads, which were related to gang affiliation); see also Escalara v. Charwand, No. 9:04-CV-0983(FJS/DEP), 2008 WL 699273, at *6 (N.D.N.Y. Mar. 12, 2008) ("The right of officials to control inmate speech and other behavior through the imposition of measures reasonably calculated to preserve the safety and security of a prison facility, its employees and inmates, is well established, even though such measures may impinge upon an inmate's ability to speak freely or to associate with others.") (citing Auleta v. LaFrance, 233 F. Supp. 2d 396, 399 (N.D.N.Y. 2002) (noting that restrictions on inmate communication are constitutional if reasonably related to legitimate penological interests)); Leitzsey, 998 F. Supp. at 287 (finding the rule prohibiting prisoners from engaging in organizational activities or possessing organizational materials that were not authorized was reasonably related to legitimate penological interest of maintaining order within correctional facilities and, thus, the inmate's free speech rights were not violated by punishment imposed upon him for possessing material pertaining to unauthorized group). Thus, the first Turner factor is clearly met.
As to second factor, the Court finds the regulation provides for an alternative means of exercising First Amendment rights. Specifically, Rule 105.13 presumably allows inmates to possess published gang-related materials that are available through the library or approved through the Media Review process. Regulations which limit, but do not eliminate, the availability of alternatives means of exercising a constitutional right may be permissible. Beard v. Banks, 548 U.S. 521, 532 (2006); see also Thomas v. Scully, No. 89 CIV. 4715 (DNE), 1990 WL 608764, at *4 (S.D.N.Y. June 28, 1990) ("[S]o long as the regulations foreclose only one of several ways in which inmates may exercise a specific first amendment right, the fact that the prohibited activity may be a more desirable means of expression does not diminish the import of the remaining alternative.").
As set forth above, the language of Rule 105.13 "excludes possession of published material that the inmate has obtained through the facility library or that has been approved for the inmate to possess through the media review process." (Dkt. No. 16 at 27.)
Further, the record demonstrates "distinctions are drawn" between permissible and impermissible photographs "on the basis of their potential implications for prison security." See Thomas, 1990 WL 608764, at *4. Indeed, only sixteen out of approximately one thousand photographs in Plaintiff's possession were initially identified as violating Rule 105.13. (Dkt. No. 45-3 at 66-67.) Since Plaintiff continued to possess almost all of his photographs, he cannot seriously claim he was provided no means of expression. Thus, the Court finds the second factor is met. See Turner, 482 U.S. at 78 (a regulation which prohibits communication between inmates at different penal institutions does not deprive inmates of all means of communication).
The third Turner factor evaluates the magnitude and nature of accommodating the asserted constitutional right. According to Acting Commission Annucci, who is responsible for the confinement and rehabilitation of approximately 51,000 individuals in custody at 54 state facilities, gang-related materials pose "a clear danger to the safety and security of a correctional facility." (Dkt. No. 45-14 at ¶¶ 5, 20.) Indeed, "allowing inmates to possess gang-related materials would likely cause a 'ripple effect' on other inmates and prison staff; in such circumstances, 'courts should be particularly deferential to the formulated discretion of corrections officials.'" Ortiz v. Russo, No. 13 Civ. 5317 (ER), 2015 WL 1427247, at *9 (N.D.N.Y. Mar. 27, 2015) (finding that given the threat of gang activity within prisons, accommodating the purported right to possess gang-related materials would likely produce a negative result). Thus, this factor is also is met.
Lastly, the court considers the reasonableness of the regulation. "[T]he existence of obvious, easy alterations may be evidence that the regulation is not reasonable." Turner, 482 U.S. at 90. Liberally construed, Plaintiff has suggested lists, examples, and images could clarify exactly what prohibited under the Rule. The Booker court rejected a similar argument, finding "more specificity in the prison context would be impossible, because . . . individuals could change the signs to avoid detection, interfering with the security and order of the facility." 2014 WL 1289579, at *12.
After applying the Turner factors in conjunction with the substantial deference owed to prison officials in matters affecting discipline and safety, the Court finds Rule 105.13 does not unreasonably restrict Plaintiff's First Amendment rights. Therefore, the Court recommends that Defendants' motion for summary judgment on Plaintiff's First Amendment claim be granted.
C. Personal Involvement/Supervisory Liability
The law is clear that "personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977). As the Supreme Court has noted, a defendant may only be held accountable for his own actions under § 1983. Aschcroft v. Iqbal, 556 U.S. 662, 676 (2009). In order to prevail on a § 1983 cause of action against an individual, a plaintiff must show "a tangible connection between the acts of a defendant and the injuries suffered." Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986).
It is well established that individuals who are sued in their capacities as supervisors, cannot be liable for damages under § 1983 solely by virtue of being a supervisor. See Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003) ("[L]iability . . . cannot rest on respondeat superior."); see also Groves v. Davis, No. 9:11-CV-1317 (GTS/RFT), 2012 WL 651919, at *6 (N.D.N.Y. Feb. 28, 2012) ("Holding a position in a hierarchical chain of command, without more, is insufficient to support a showing of personal involvement.") (citing McKinnon, 568 F.2d at 934). To establish responsibility on the part of a supervisory official for a civil rights violation, a plaintiff must demonstrate that the individual: (1) directly participated in the challenged conduct; (2) after learning of the violation through a report or appeal, failed to remedy the wrong; (3) created or allowed to continue a policy or custom under which unconstitutional practices occurred; (4) was grossly negligent in supervising subordinates who caused the unlawful event; or (5) failed to act on information indicating that unconstitutional acts were occurring. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).
The Second Circuit has thus far expressly declined to determine whether Iqbal eliminated any of the Colon bases for liability. See Grullon v. City of New Haven, 720 F.3d 133, 139 (2d Cir. 2013).
Here, Plaintiff asserts claims against Annucci, Rodriguez, Smith and Uhler based upon their apparent supervisory positions, awareness of ongoing constitutional violations and their failure to prevent them from continuing. (Dkt. No. 16 at ¶¶ 32-33, 80-84.) The record demonstrates, however, that Annucci, Rodriguez, Uhler, and Smith were not personally involved in any alleged violation of Plaintiff's constitutional rights. For example, Annucci declares he had no involvement in Plaintiff's disciplinary hearings or appeals. (Dkt. No. 45-14 at ¶¶8-15.) Rodriguez received correspondence related to Plaintiff's first disciplinary hearing, which he passed on to the appropriate staff and affirmed the second disciplinary hearing. (Dkt. No. 45-18 at ¶¶6-7, 9-10.) Uhler simply forwarded a piece of correspondence from Plaintiff to the appropriate staff at DOCCS Central Office. (Dkt. No. 45-20 at ¶¶9-11.) Finally, Smith delegated Plaintiff's first disciplinary hearing and grievance investigations to his subordinates at Shawangunk and conducted a discretionary review of Plaintiff's first disciplinary hearing. (Dkt. No. 45-19 at ¶¶ 10-12, 14-22.)
Initially, it is well settled "that receipt of letters or grievances, by itself, does not amount to personal involvement." Guillory v. Ellis, No. 11-CV-600 (MAD/ATB), 2012 WL 2754859, at *10 (N.D.N.Y. July 9, 2012) (citing Vega v. Artus, 610 F. Supp. 2d 185, 199 (N.D.N.Y. 2009)); Johnson v. Wright, 234 F. Supp. 2d 352, 363 (S.D.N.Y. 2002) ("[I]f mere receipt of a letter or similar complaint were enough, without more, to constitute personal involvement, it would result in liability merely for being a supervisor, which is contrary to the black-letter law that § 1983 does not impose respondeat superior liability.") Further, to the extent Plaintiff brings claims against Annucci, Rodriguez, Uhler and Smith because they were involved in some way with the disciplinary appeals process, for the reasons set forth above, Plaintiff was afforded the minimum requirements of due process. As such, Plaintiff's supervisory liability claims necessarily fail. See, e.g., Cole v. DOCCS, 2016 WL 5394752, at *28 (granting summary judgment to supervisor who affirmed a disciplinary hearing that was rendered a nullity and granting summary judgment to a supervisor who affirmed a disciplinary hearing that comported with due process); Lopez v. Whitmore, No. 13-CV-0952 (BKS/ATB), 2015 WL 4394604, at *11 (July 16, 2015) (dismissing due process claim against supervisor "[b]ecuase his only involvement in plaintiff's claims was to affirm the results of a disciplinary hearing that th[e] court . . . found comported with due process"); Cole v. DOCCS, 2016 WL 5394752, at *28 (same).
In light of the foregoing, the Court recommends that Defendants' motion for summary judgment on Plaintiff's supervisory liability claims be granted.
D. Conspiracy
Plaintiff alleges Korines, Pingotti, and Kober conspired to confiscate his photographs and subject him to improper discipline in violation of his constitutional rights. (Dkt. No. 16 at 10-12.) However, Defendants do not address this claim in their memorandum of law.
Inasmuch as the Court is recommending granting summary judgment to Defendants on the underlying § 1983 causes of action, the Court recommends sua sponte dismissing Plaintiff's conspiracy claim. See Bristol v. Nassau Cty., No. 08 Civ. 3480 (AMD)(SIL), 2016 WL 2760339, at *7 (E.D.N.Y. May 12, 2016) ("Because, the plaintiff's claim that the individuals defendants violated his constitutional rights is dismissed as a matter of law, his section 1983 conspiracy claim also fails as matter of law.") (citing Droz v. McCadden, 580 F.3d 106, 109 (2d Cir. 2009) ("Because neither of the underlying section 1983 causes of action can be established, the claim for conspiracy also fails.")).
WHEREFORE, it is hereby
RECOMMENDED that Defendants' motion for summary judgment (Dkt. No. 45) be GRANTED; and it is further
RECOMMENDED that Plaintiff's § 1983 conspiracy claim be sua sponte DISMISSED for failure to state a claim upon which relief may be granted; and it is further
RECOMMENDED that Plaintiff's second amended complaint (Dkt. No. 16) be DISMISSED IN ITS ENTIRETY; and it is further
ORDERED that the Clerk shall provide Plaintiff with a copy of this Report-Recommendation, along with copies of the unpublished decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2008) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989) (per curiam)); 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed. R. Civ. P. 72, 6(a). Dated: August 31, 2018
If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Order and Report-Recommendation was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).
Syracuse, NY
/s/_________
Thérèse Wiley Dancks
United States Magistrate Judge