Appeal from an order entered December 5, 1983 in the Western District of New York, Michael A. Telesca, District Judge, dismissing a pro se complaint in an action pursuant to 42 U.S.C. § 1983 (1982) for failure to state a claim upon which relief can be granted.
Timbers, Cardamone and Pierce, Circuit Judges.
This appeal is from a judgment entered December 5, 1983 in the Western District of New York, Michael A. Telesca, District Judge, dismissing a pro se complaint pursuant to Fed. R. Civ. P. 12(b) (6) for failure to state a claim upon which relief can be granted. The appeal presents the question of whether a claim is stated under 42 U.S.C. § 1983 (1982) when the complaint alleges that a state prisoner was placed in isolation by state officials in violation of state law and without being afforded a prior hearing that conforms to the due process requirements enunciated in Wolff v. McDonald, 418 U.S. 539, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974). The district court held that Parratt v. Taylor, 451 U.S. 527, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981), required dismissal of the complaint because the state provides an adequate postdeprivation remedy. We disagree. We reverse and remand.
For purposes of this appeal we accept as true the allegations set forth in the complaint. We summarize only those facts and prior proceedings believed necessary to an understanding of our rulings on the legal issues raised on appeal.
Appellant Emmanuel D. Patterson is, and at all times relevant to this action was, an inmate of the Attica Correctional Facility at Attica, New York. Appellees are Thomas A. Coughlin III, the Commissioner of the New York State Department of Correctional Services; Harold J. Smith, the Commissioner of the Attica Correctional Facility; Charles P. Hernandez, Director of the Special Housing Review Board; and N. DeSantos, a Captain at Attica.
On April 9, 1982, a fight broke out between two other inmates at Attica. Appellant, who asserts that he was not involved in the altercation, was placed in the facility's Special Housing Unit (SHU). On April 12, appellant appeared before the Prison Adjustment Committee and was charged with "Assault 1.5 and Interference with an employee 1.75". A Superintendent's Hearing was convened on April 16 to consider the charges but was adjourned until April 20.
Appellee DeSantos was the hearing officer at the April 20 hearing. The only witness who testified was the guard who claimed to be the subject of appellant's assault. Appellant was not permitted to call any witnesses in his defense nor did DeSantos interview any such witnesses. Appellant was found guilty of both charges. He was sentenced to confinement in the SHU for sixty days and loss of sixty days "good time". Appellant appealed the decision at the Superintendent's Hearing to appellees Smith and Coughlin. On July 21, 1982, that decision was affirmed by the Housing Review Board.
In the meanwhile, appellant filed an Article 78 proceeding in the Supreme Court of the State of New York, County of Wyoming, in which he sought immediate release from the SHU and restoration of the sixty days good time. Just prior to his scheduled appearance in the Supreme Court, and shortly before his sixty-day sentence had been served,*fn1 he was released from the SHU. A hearing was held in the Supreme court on June 10, 1982. Appellees at that hearing were ordered to produce the record of the Superintendent's Hearing. That record was never produced. A second hearing was held in the Supreme Court on February 25, 1983.
On March 4, 1983, the Supreme Court entered an Order of Stipulation dismissing appellant's petitio with prejudice but ordering that appellees "through their agents or employees not hold the [appellant] in confinement in Attica'[s] Special Housing Unit because of the disposition issued at [appellant's] Superintendent's Proceeding of April 20, 1982 at the Attica Correctional Facility." The order specifically provided that appellees had stipulated to restore appellant's good time and to expunge any reference to the disciplinary proceeding from appellant's file.
On or about April 6, 1983, appellant filed his pro se complaint, on a form used by prisoners who are not represented by counsel, in the District Court for the Western District of New York. At the same time, he moved for leave to proceed in forma pauperis and for appointment of counsel; on May 10, 1983, Judge Telesca granted the former, but denied the latter.*fn2
On August 15, 1983, appellees moved pursuant to Fed. R. Civ. P. 12(b) (6), to dismiss the complaint for failure to state a claim upon which relief could be granted, or, in the alternative, for summary judgment pursuant to Fed. R. Civ. P. 56. Apparently no documentary evidence ever was produced, despite the district court's order of August 1, 1983 requiring production of the record of the Superintendent's Hearing.*fn3 The district court, treating the motion as one under Rule 12(b)(6), dismissed the complaint in a Memorandum Decision and Order dated December 5, 1983 which in relevant part states:
"In the present case, plaintiff alleges that defendants failed to strictly comply with the procedures established in New York's Code of Rules and Regulations for Confinement in a Special Housing Unit. Because the procedures existed, but were allegedly not followed, no meaningful predeprivation hearing was possible. . . . Plaintiff did seek redress pursuant to New York Civil Practice Law and Rules Article 78 to force defendants to comply with the ...