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April 6, 1984

BENJAMIN WOLFE, Plaintiff, against NORMAN A. CARLSON, et al., Defendants.

The opinion of the court was delivered by: HAIGHT


HAIGHT, District Judge

 Plaintiff brings this action pro se alleging a deprivation of his Due Process rights during the course of disciplinary proceedings instituted against him while he was an inmate of the Federal Correctional Institution at Otisville, New York ("Otisville"). Jurisdiction is founded upon 28 U.S.C. § 1331. Defendants have moved to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), or, alternatively, for summary judgment in their favor pursuant to Fed.R.Civ.P. 56(b).

 For the reasons stated, defendant's motion for summary judgment is granted.


 Factual Background

 On September 18, 1980, while an inmate at Otisville, plaintiff was informed in writing that he was charged with having damaged certain "perimeter fence poles" on the prison grounds two days earlier. (Administrative Record ["AR"], p. 1). According to an incident report by defendant Dale Groover, Correctional Supervisor, "[r]eliable and confidential information" revealed that plaintiff was "directly and solely" responsible for an estimated $1000 worth of property damage. (AR, pp. 1-2). As a result of these charges, plaintiff was placed in administrative segregation on September 18, 1980 (Complaint, p. 3).

 On September 22, 1980, the Unit Disciplinary Committee (the "UDC") convened to consider the incident, but decided to defer the hearing pending completion of investigations. (Bidwell, Aff. P4). Plaintiff was notifed acordingly. (AR, p. 8). Plaintiff appeared before the UDC on September 26, 1980, at which time he was informed that his case was being transferred to the Institution Discipline Committee ("IDC") with a recommendation for disciplinary transfer and forfeiture of 60 days statutory "good time." (AR, p. 1). At that time, plaintiff was given a list of procedural rights regarding the IDC hearing, and was advised of his right to call winesses. (Complaint, p. 3). Allegedly relying on a statement by UDC Chairman Bidwell that Otisville staff members need not be requested as witnesses because their testimony would automatically be considered, plaintiff claims to have requested the presence of six witnesses. (Complaint, p. 3). The written request form signed by plaintiff on September 26, however, contains only five names. (AR, p. 12).

 An IDC hearing was held in plaintiff's presence on September 29, 1980. Plaintiff was accompanied by a staff representative and testified on his own behalf. (AR, pp. 15-16). Three of plaintiff's requested witnesses also appeared at the hearing and testified regarding their recollections of the evening of September 16. (AR, p. 17). Only one witness, an inmate Valdner, recalled being in plaintiff's presence at approxiately 7:00 p.m. -- the time at which the infraction allegedly occurred. (AR, pp. 1, 17). Two other inmates were not called to testify because the information they could provide was obtained through other witnesses. (AR, p. 16).

 The IDC also considered several memoranda from two members of the correctional staff summarizing confidential information the staff members had received from inmate informants. (AR, pp. 16-18). In a signed memo dated September 18, 1980, P. Pitzer, C.S., summarized "reliable" information gained from a confidential source describing the manner inwhich plaintiff allegedly destroyed the fence poles. (AR, p. 4). The confidential source, unnamed in the memorandum, is said to have previously supplied information that led to a finding of cocaine use by another inmate. Id. In two signed memos dated September 22 and September 24, 1980, D. Groover, C.S., summarized additional information he received from "a second reliable person" also implicating plaintiff in the fence destruction. (AR, pp. 9-10).

 On the basis of this documentary evidence and the testimony of the three inmates, the IDC found that plaintiff had committed the acts charged, ordered forfeiture of 30 days statutory good time and recommended a disciplinary transfer. (AR, p. 16). The IDC provided plaintiff with a written statement of the evidence it relied upon and the reasons for the disciplinary action taken. (AR, pp. 15-18). The sanction was within the IDC's discretion in dealing with a "high severity" prohibited act. (Bureau of Prisons Policy Statement 5270.3, §§ 5541.11, 541.16). Plaintiff was subsequently transferred to a more secure facility at Petersburg, Virginia, and unsuccessfully appealed the IDC decision to the Otisville Warden (AR, p. 23), the General Counsel of the Federal Bureau of Prisons (AR, p. 20), and the Regional Director of the Federal Bureau of Prisons (AR, p. 21).


 Plaintiff challenges the disciplinary process outlined above as violative of both the prisons' promulgated regulations and his own due process rights. Although plaintiff asserts that his rights were infringed in "a staggering variety of ways," (Complaint, p. 4), I am able to discern only three claims in the petition which arguably present actionable deprivations of constitutional rights.

 First, plaintiff contends that the reliance of the Otisville disciplinary committees upon written summaries of information obtained by investigating officers through inmate informants constitutes a denial of due process. Plaintiff argues that such secondary "reports" provide "no primary evidence of guilt" (Complaint, p. 5), are "hearsay" (Complaint, p. 6), and are so fraught with the ...

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