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July 26, 1984

WILFRED PINO, JR., Plaintiff, against STEPHEN DALSHEIM, Superintendent, HYLAN SPERBECK, Deputy Superintendent, ROBERT F. EGGER, Correction Captain, WILLIAM J. THOMPSON, Correction Captain, PAUL KRACHT, Correction Lieutenant, J. NOVAK, Recreation Program Leader, DOWNSTATE CORRECTIONAL FACILITY, and THOMAS A. COUGHLIN, III, Commissioner, New York State Department of Correctional Services, Defendants.

The opinion of the court was delivered by: CONNER



 In 1981, while incarcerated at Downstate Correctional Facility ("Downstate"), plaintiff Wilfred Pino, Jr. ("Pino") was twice disciplined for violating various institutional rules. He commenced the instant action pursuant to 42 U.S.C. ยง 1983 to challenge the propriety of the procedures under which he was disciplined. Although Pino originally filed a pro se complaint, the Court subsequently granted his application for appointment of counsel, and on May 20, 1983, his appointed counsel *fn1" filed an amended complaint. In this amended complaint, Pino alleges that the disciplinary procedures employed by defendants denied him due process of law as guaranteed by the United States Constitution and also violated certain rights guaranteed to him by New York State law.

 A two-day, non-jury trial was conducted on December 7 and 8, 1983. This Opinion and Order incorporates the Court's findings of fact and conclusions of law pursuant to Rule 52, F.R.Civ.P. For the reasons set forth below, defendants' motion to dismiss at the close of plaintiff's case, upon which I had reserved decision, is denied. Judgment will be entered in plaintiff's favor to the extent set forth below. The remaining claims are dismissed.


 The claims underlying this action concern disciplinary action taken against plaintiff as a consequence of two separate incidents during the summer of 1981. The first of these involved an altercation between Pino and a corrections officer on July 31st. At approximately 6:00 P.M. that day, Pino confronted Corrections Officer Bowman while he and a trainee officer were conducting a search of Pino's cell.When Bowman refused to accede to Pino's demand that the officers leave his cell, the two men began arguing, both using raised voices and profane language. At one point during the argument, which continued both at the entrance to Pino's cell and in an adjoining communal television room, Pino shouted at Officer Bowman: "You are not going into my fucking room, I'll break your ass up." Eventually, Sergeant Bradt, the officer in charge, arrived and ordered all inmates to lock into their cells. As Pino began to walk toward his cell pursuant to this order, he stated to Sergeant Bradt, "you had better get me off this gallery before I kill him [Officer Bowman]."

 Immediately following these events, Pino was keeplocked *fn2" in his cell. At approximately 11:30 P.M. that evening he was given two notices that inmates misbehavior reports had been filed against him. Each notice indicated the numbers of the rules that Pino was accused of having violated, and contained the location and time of the alleged incident. The rule numbers listed on the notices of report received by Pino corresponded to rules contained in a rulebook.

 Pino received a rulebook in 1978 when he was admitted to Attica Correctional Facility. He read only part of this book, however, having concluded that "there were a lot of things there that were really unnecessary to read." Tr. at 135. Later, in 1978 when Pino was transferred -- or, in prison parlance, "boated out" -- from Attica to Great Meadow Correctional Facility, he sent his copy of the rulebook home to his family along with some of his other belongings. He was not issued a new rulebook in Great Meadow or in Downstate, where he was subsequently transferred, and thus he did not have with him a personal copy of any rulebook in 1981 at the time of the incidents complained of here. Copies of the applicable rulebook were, however, available in the prison law library and in the Special Housing Unit ("SHU"). *fn3"

 Following a weekend in keeplock status, Pino appeared on August 3, 1981 before a three-member Adjustment Committee chaired by Lieutenant Paul Kracht. Following some testimony by Pino, the hearing was adjourned by Lieutenant Kracht until August 5th.

 Although Pino did not reappear before the Adjustment Committee on August 5th, he was released from keeplock status on that day. Moreover, he was called before the Committee a second time on August 7th. As was the case at the August 3rd appearance, no inmates or employees other than Pino appeared at the August 7th hearing.Written reports concerning the incident were, however, filed by Sergeant Bradt and Sergeant Batis.Following that hearing, the Adjustment Committee decided to dismiss two of the charges (violations of Rules 1.75 and 1.95) against Pino, but to affirm two others (violations of Rules 1.25 and 2.30) and to refer the matter to a Superintendent's Proceeding. In his report on the August 7th appearance, Lieutenant Kracht noted that Pino displayed a negative attitude toward authority, that he freely admitted threatening the officer, and that he expressed no remorse for having done so. Following a consultation with Deputy Superintendent Hylan T. Sperbeck, Lieutenant Kracht directed that Pino be ordered confined to SHU pending the Superintendent's Proceeding.

 Also on August 7th, Pino selected Joan Ryley ("Ryler"), Senior Library Clerk, from a list of 19 prison employees available to assist him with the Superintendent's Proceeding. On August 13th, Ryler delivered a formal written charge to Pino, which accused him of violating prison rules as follows:

 (1) 1.25 Disturbance; creation, participation or inciting others to participate.

 (2) 1.95 Riot or inciting others to Riot.

 (3) 2.30 Threats toward other Inmates or Employees.

 (4) 3.30.11 Loud and boisterous conduct.

 On July 31, 1981, at approx. 8:10 P.M., while on 4F Gallery, you created a disturbance by threatening Officer Bowman because he was in your cell. Even though Sgt. Bradt explained to you that it was the Officers [sic] job to do visual security checks you still proceeded to be loud and boisterous, and shouted at Officer Bowman, "You are not going into my fucking room, I'll break your ass up." When Sgt. Bradt gave you a direct order to lock in, while walking to your cell you stated, "You had better get me off this Gallery before I kill him," meaning Officer Bowman.

 In behaving in this loud and boisterous behavior, you incited other Inmates to participate in this confrontation J. Castro 79 A. 2824

 E. Pagan 78 B 1107

 R. Soto 78 A 4144

 Ryley also gave Pino a copy of Chapters V and VI of the New York State Correctional Service Rules and Regulations and explained the nature of the Superintendent's Proceeding to him. In response to the first two formal charges, Pino explained to Ryley that his argument with Officer Bowman was personal and at no time did he attempt to involve others. He told Ryler in response to the third charge that he verbally threatened the Officer only after the Officer got into a karate stance, which served to escalate the confrontation. Finally, he admitted being loud as alleged in the fourth charge.

 Moreover, also at their August 13th meeting, Pino requested that Ryley interview inmates Castro, Pagan, and Soto. In response to this request Ryley interviewed and obtained written statements from these three inmates and inmate Franciotti prior to the Superintendent's Proceeding. The written statements from these four inmates all corroborate, to varying degrees, Pino's story that he was loud and threatened the officer in response to the officer's taunts.

 On August 14, 1981, Captain Robert Egger conducted a Superintendent's Proceeding on the charges filed against plaintiff. Prior to the date of that Proceeding, Pino had spent six days in keeplock and had been confined to SHU for seven days as a result of the charges filed against him on July 31st. Pino appeared at the Proceeding, which lasted approximately 15-20 minutes, but no other live witnesses were called. Captain Egger commenced the hearing by reading the formal charge to Pino and then asking Pino to admit, deny, or propose an acceptable variation for each specific charge. In this context, he was afforded a more than ample opportunity to explain orally his version of the events. During the course of the questioning by Captain Egger, Pino denied violating Rules 1.25 and 1.95, but admitting making threats in violation of Rule 2.30 *fn4" and engaging in loud conduct in violation of Rule 3.30.11. In addition, he ...

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