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October 8, 1981

Howard JACOBSON, Plaintiff,
Thomas A. COUGHLIN, III and Eugene LeFevre, Defendants

The opinion of the court was delivered by: MCCURN


Plaintiff Howard Jacobson, an inmate at Clinton Correctional Facility, commenced this action under 42 U.S.C. § 1983 against defendants Thomas A. Coughlin, III, Commissioner of the New York State Department of Correctional Services, and Eugene LeFevre, Superintendent of Clinton Correctional Facility. In his complaint, plaintiff challenged the constitutionality of a Superintendent's Proceeding at which plaintiff was found guilty of attempted escape and unauthorized use of equipment. Plaintiff also challenged the constitutionality of the punishment imposed, viz., nine months of disciplinary segregation in the Special Housing Unit and the revocation of nine months of good time credits. Following a hearing, this Court granted a preliminary injunction directing defendants either to release plaintiff from Special Housing or to commence a new Superintendent's Proceeding within seven days. The injunctive relief was based on a finding that the hearing officer relied on confidential information without disclosing to plaintiff the substance of that information and without setting forth the security or safety concerns that prompted the refusal to disclose the information to the plaintiff and the reasons why the hearing officer believed the confidential information to be credible.

 This matter is now before the Court on plaintiff's motion for preliminary and permanent injunctive relief challenging the constitutionality of the procedures used at plaintiff's second Superintendent's Proceeding on the underlying disciplinary charges. Specifically, plaintiff alleges that he was denied due process in that: (1) he was punished for attempting to assert a defense to the charges; (2) he was not permitted to call witnesses in his behalf at the hearing; (3) he was not provided with a proper employee assistant, and (4) he was not shown some of the evidence on which the hearing officer relied.

 A hearing on this motion was held on August 25, 1981. At that hearing, counsel for the defendants provided the Court with a transcript of the second Superintendent's Proceeding. While there remains some dispute over the inferences to be drawn from the record concerning issues "1", "3" and "4", defendants conceded that none of the witnesses designated by plaintiff were called at the hearing and that plaintiff was not present at the time his witnesses were interviewed. With the consent of the parties, the plenary trial was advanced and consolidated with the preliminary injunction hearing for the limited purpose of determining plaintiff's entitlement to permanent injunctive relief. A prompt and final disposition of plaintiff's request for injunctive relief is especially appropriate in light of the fact that plaintiff has been confined in the Special Housing Unit since May 6, 1981, and because the defendants have now had two opportunities to conduct a hearing that conforms to the requirements of due process of law. Plaintiff's claim for damages against these defendants and any defenses pertinent to that claim are deferred until a later date.

 For the reasons discussed below, the Court concludes that the procedures followed at the second Superintendent's Proceeding did not satisfy the minimum requirements of due process of law as set forth in Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974). Specifically, plaintiff was denied the right to call witnesses to testify on his behalf and in his presence at the hearing and the witness interviews that were conducted were not incorporated into the record of the hearing.

 Before turning to the specific constitutional claims advanced in support of the present motion, it is necessary briefly to address defendant's motion to dismiss. Defendants contend that this suit is in nature and effect a suit against the State of New York for recovery of money damages and as such is barred by the Eleventh Amendment. It is true that plaintiff has alleged no specific involvement by Commissioner Coughlin in the Superintendent's Proceedings that give rise to this suit, and it is well settled that the doctrine of respondeat superior cannot support a damage recovery in a § 1983 action. Monell v. New York City Department of Social Services, 436 U.S. 658, 694, 98 S. Ct. 2018, 2037, 56 L. Ed. 2d 611 (1978); see also Duchesne v. Sugarman, 566 F.2d 817, 830 (2d Cir. 1977). However, in ruling on a motion to dismiss the court must construe the allegations favorably to the pleader and may not dismiss the complaint "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 101-102, 2 L. Ed. 2d 80 (1957). Defendant's Eleventh Amendment attack does not focus on any one of the several constitutional violations alleged to have occurred in the course of the two Superintendent's Proceedings. Accordingly, it will suffice to defeat the motion if plaintiff can prove a set of facts that would entitle him to recover on any one of his claims. As the discussion below of plaintiff's claim that he was unconstitutionally denied the right to call witnesses will demonstrate, plaintiff may be able to prove that the defendants promoted a policy "which sanctioned the type of action that caused the violations." Duchesne v. Sugarman, supra, 566 F.2d at 831. Since it cannot be said with certainty that plaintiff seeks recovery against these state officers only in their official capacity, the Eleventh Amendment does not, standing alone, preclude plaintiff from seeking to impose individual and personal liability on the named defendants. See Scheuer v. Rhodes, 416 U.S. 232, 237-38, 94 S. Ct. 1683, 1686-87, 40 L. Ed. 2d 90 (1974); Duckett v. Ward, 458 F. Supp. 624, 627 (S.D.N.Y.1978). Accordingly, the motion to dismiss is denied in its entirety without prejudice to renew when the question of monetary liability is properly before the Court. At this time, the Court is concerned solely with the claims for injunctive relief, and it is well settled that the Eleventh Amendment does not shield state officials from such relief. Ex parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 (1908).

 I. Inadequate Employee Assistance.

 Plaintiff's first claim is that he was denied due process in that he was not provided with an employee assistant in accordance with the Correctional Services Regulations. Those Regulations provide in pertinent part:

(a) The person appointed to conduct the hearing shall designate an employee to furnish assistance to the inmate. This assistance shall be solely of an investigative nature. The employee is not intended to and may not act as an advocate for the inmate. If the inmate elects, such employee shall be of the inmate's choice selected from a list of available employees established by the superintendent, or any other employee upon approval of the superintendent.

 7 N.Y.C.R.R. § 253.3(a). Under the Regulations, the assistant is supposed to present the notice of the charges to the inmate and explain to the inmate the nature of proceeding and the charges. Id. at § 253.3(b). In addition, the assistant must "ask the inmate whether there is any factual matter that can be presented in his behalf and he shall investigate any reasonable factual claim the inmate may make." Id. Upon completion of the investigation, the assistant is required to submit a written report to the hearing officer detailing the actions taken on the inmate's behalf and the results of the investigation, "including documentary evidence and statements of witnesses interviewed...." Id. at § 253.3(c).

 The procedures employed by Captain Fuller, the hearing officer at the second Superintendent's Proceeding, failed to comply with these regulations in several respects. On the Friday before the second hearing began, Corrections Counselor Santor served plaintiff with the formal notice of the proceeding and informed him of the charges and of his right to have witnesses interviewed by an employee assistant. Defendant's Exhibit B; PT. 2-5. Plaintiff had not yet prepared a witness list, but requested that Officer Boisseau, plaintiff's supervisor in the prison law library, be designated as his assistant. Mr. Santor told plaintiff that he would be away from the facility over the weekend and intimated that Mr. Boisseau might be unavailable. PT. 8. During the weekend, plaintiff also asked a priest to act as his assistant, but the priest declined.

 When the second Superintendent's Proceeding commenced on Monday, August 3, 1981, plaintiff again asked that Boisseau be designated as his assistant. Captain Fuller, the hearing officer, explained to plaintiff that the assistant's function is simply to act as an investigator and not as an advocate for the inmate. Captain Fuller then provided plaintiff with the list of available assistants, but plaintiff responded that because he didn't know any of these people, he did not think that any purpose would be served by choosing one of them. Rather, he wanted someone who, like Mr. Boisseau, was familiar with the procedures in the yard and in the law library, where plaintiff had been working prior to the alleged escape attempt.

 Captain Fuller then assured plaintiff that he would personally act as the employee assistant and would interview the individuals that plaintiff listed as witnesses. PT. 16. In an effort to insure the efficacy of this unusual procedure, plaintiff explained what he wanted to establish through the various witnesses. PT. 13-16; T. 1-2, 7-22.

 While Captain Fuller's decision to designate himself as the employee assistant was unusual, nothing in the language of the rule expressly prohibits it and, more importantly, plaintiff eventually agreed to this procedure. Moreover, whatever ambiguity inheres in the wording of the regulation, Romano v. Ward, 96 Misc.2d 937, 409 N.Y.S.2d 938, 940 (Sup.Ct.1978), it is clear from this record that plaintiff was offered a choice, but declined the opportunity to choose an assistant from the available list.

 This conclusion does not end the matter, however, because on this record it cannot be said that Captain Fuller adequately discharged his responsibilities as plaintiff's employee assistant. First, contrary to the Regulations and his assurance to plaintiff, Captain Fuller did not personally interview the witnesses; rather, the witnesses were interviewed by several Correctional Sergeants. Defendant's Exhibit: Superintendent's Proceeding Report, August 5, 1981 "Inmate Explanation." Second, plaintiff had no access to the statements of the witnesses interviewed and, with respect to some of the witnesses, he was unaware of their identities. See Romano v. Ward, supra, 409 N.Y.S.2d at 940. Third, defendants have not provided the Court with the final investigative report which, under the Regulations, Captain Fuller was required to prepare and include in the record of the hearing. 7 N.Y.C.R.R. § 253.3(c).

 With respect to certain of the inmates who were "interviewed" by Corrections Sergeants, the Superintendent's Proceeding Report states only that "all interviewed denied knowledge of the incident." However, not only were these interviews not conducted by Captain Fuller in his assumed role as the employee assistant, it does not appear that these "interviews" were recorded or made a part of the record. It is, therefore, impossible to determine what questions were asked of these witnesses; indeed, it is impossible to determine which inmates were interviewed.

 While the substantive and procedural requirements of section 253.3 may go beyond the minimal safeguards recognized by the United States Supreme Court, see Amato v. Ward, 41 N.Y.2d 469, 393 N.Y.S.2d 934, 362 N.E.2d 566 (1977), a violation of such state-created guidelines may give rise to a federal due process claim that is actionable under 42 U.S.C. § 1983. Duckett v. Ward, supra, 458 F. Supp. at 627, citing Lathrop v. Brewer, 340 F. Supp. 873, 881-82 (S.D.Iowa 1972). There is ample support for the proposition that where such violations occur, the inmate may be entitled to have the disciplinary decision declared void and the disciplinary proceeding expunged from his records. See e.g., Hurley v. Ward, 61 A.D.2d 881, 402 N.Y.S.2d 870 (4th Dep't 1978); Allison v. Wilmot, 101 Misc.2d 632, 421 N.Y.S.2d 760 (Sup.Ct. Chemung Co. 1979); Pyles v. Ward, 90 Misc.2d 384, 394 N.Y.S.2d 528 (Sup.Ct. Dutchess Co. 1977); People ex rel. Sparaco v. Superintendent, Green Haven Correctional Facility, 89 Misc.2d 416, 391 N.Y.S.2d 809 (Sup.Ct. Dutchess Co. 1977); Ortiz v. Ward, 87 Misc.2d 307, 384 N.Y.S.2d 960 (Sup.Ct. Clinton Co. 1976).

 It is not necessary, however, for this Court to finally determine whether plaintiff was deprived of his liberty rights without due process of law by Captain Fuller's failure to abide the state regulations concerning the duties of an employee assistant. In light of this Court's conclusions concerning plaintiff's claim that he was denied the right to call witnesses at the hearing (discussed below), it will suffice to say that plaintiff has demonstrated that he is likely to succeed on the merits of his inadequate assistance claim. Since the defendants may have construed this Court's consolidation order as having been limited to the witness issue, the Court will not rest permanent injunctive relief on the inadequate assistance ground alone.

 II. The Denial of Plaintiff's Right to Call Witnesses at the Hearing.

 At the outset of the second Superintendent's Proceeding, plaintiff asked Captain Fuller if he would be allowed to call witnesses. Captain Fuller responded that plaintiff would be allowed "to have witnesses give statements in supporting (sic) ...

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