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April 25, 1986

THOMAS A. COUGHLIN, III, et al., Defendants.

The opinion of the court was delivered by: GOETTEL


In years past, when prisoners' civil rights cases were first beginning to clog the court calendars, state regulations were enacted to govern prison disciplinary proceedings. Presumably, these regulations would alleviate the flood of federal suits alleging due process violations in administering prison discipline. This laudable objective has never materialized. Instead, the passage of such state regulations has simply prompted additional suits claiming failure to follow state regulations. This is such a case.


 On January 16, 1984, while incarcerated at the Long Island Correctional Facility ("LICF"), the plaintiff was involved in two major disturbances. The first occurred at 4:00 a.m. in a mess hall. The plaintiff allegedly broke off a chair leg, brandished it in a threatening manner, and pushed over tables to block the doorways. The second incident occurred at 6:30 p.m. in a large reception room, where a group of inmates threw chairs at correction officers. The plaintiff was charged with throwing a chair that struck a particular correction officer.

 Correction officers at LICF prepared inmate misbehavior reports on the day of the disturbance. On the following day, the plaintiff was served with formal charges at Sing Sing Correctional Facility, *fn1" to which he had been transferred almost immediately following the LICF disturbances. The plaintiff was permitted to choose an employee to assist him at his disciplinary hearing. He met with the assigned correction counselor on January 18, 1984, and requested that several inmates be called as witnesses on his behalf. A hearing was held on January 20, 1986, before Captain Wayne Strack, Deputy Superintendent of Sing Sing. He denied the plaintiff's request for witnesses because those inmates had been involved in the same disturbance and were considered a threat to institutional safety and security. However, Captain Strack recessed the hearing and interviewed three of the plaintiff's witnesses individually. *fn2" No other witnesses were called. Relying on the inmate misbehavior reports filed by the LICF correction officers, Captain Strack found the plaintiff guilty of the charges of misconduct and assessed a substantial disciplinary penalty.

 More than one and one-half years after the events in question, the plaintiff commenced the instant action. *fn3" He alleges three causes of action: (1) that his transfer to Sing Sing, and the manner in which the disciplinary hearing was conducted, violated his fourteenth amendment right to due process of law; (2) that he was subjected to cruel and unusual punishment in violation of the eighth amendment by virtue of the transfer and disciplinary proceedings; and (3) that the defendants failed to conduct the disciplinary hearing in accordance with state regulations. The plaintiff seeks $3 million in damages, and names the following defendants: Thomas A. Coughlin, III, Commissioner of Corrections; *fn4" Superintendent Sullivan, the Warden of Sing Sing; and Captain. Strack, who conducted the disciplinary hearing.

 On February 18, 1986, the plaintiff filed what amounts to a motion for summary judgment. He argues that Captain Strack's reliance on the correction officers' written reports was improper because the rules and regulations of the New York State Department of Correctional Services require the oral testimony of these officers. *fn5" He complains that the testimony of his witnesses was totally disregarded because they were all in the same disturbance, but notes that the officers who wrote the reports were likewise in the same disturbance and, thus, their evidence is entitled to no greater consideration. Finally, he alleges that his rapid transfer to a different facility was a "kidnapping."

 The defendants have filed a cross-motion for judgment on the pleadings, arguing that (1) the action is time barred; (2) the complaint fails to state a claim upon which relief can be granted; and (3) neither the transfer nor the conduct of the disciplinary proceedings denied the plaintiff due process of law. We discuss each of these arguments below since, ultimately, they are dispositive of the action.


 1. Statute of Limitations.

 The defendants' first argument is the most difficult. No specific statute of limitations governs civil rights cases brought under 42 U.S.C. 1983. Consequently, the courts have looked for the most analogous state limitations period. Previously, this Circuit selected New York's three year period for actions to recover upon a liability created by statute. N.Y. Civ. Prac. Law & R. § 214(2) (McKinney 1972). See Pauk v. Board of Trustees, 654 F.2d 856, 866 (2d Cir. 1981), cert. denied, 455 U.S. 1000, 71 L. Ed. 2d 866, 102 S. Ct. 1631 (1982). However, in Wilson v. Garcia, 471 U.S. 261, 105 S. Ct. 1938, 85 L. Ed. 2d 254 (1985), the Supreme Court held that the appropriate statute of limitations for all section 1983 cases is the state's statute of limitations for personal injury claims. Id. at 1947.

 Some states have a single statute of limitations for personal injury claims. Others differentiate between intentional and negligent torts in establishing statutes of limitations. In the latter situation, several circuits, relying on Wilson v. Garcia, have determined that the statute of limitations governing intentional torts is the appropriate one to apply in section 1983 cases, because such actions are primarily predicated on intentional rather than negligent. acts. See Mulligan v. Hazard, 777 F.2d 340, 344 (6th Cir. 1985); Gates v. Spinks, 771 F.2d 916, 919-20 (5th Cir. 1985), cert. denied, 475 U.S. 1065, 106 S. Ct. 1378, 89 L. Ed. 2d 603 (1986); Jones v. Preuit & Mauldin, 763 F.2d 1250, 1255-56 (11th Cir. 1985), cert. denied, 474 U.S. 1105, 106 S. Ct. 893, 88 L. Ed. 2d 926 (1986). The Second Circuit has not directly considered the issue. However, in Villante v. Department of Corrections, 786 F.2d 516, slip op. at 2232 n.2 (S.D.N.Y. 1986), the court noted in dictum that "the general personal injury tort limitations period, which seems to be what is mandated for section 1983 actions by Wilson v. Garcia,... is ... three years in New York. N.Y. Civ. Prac. Law § 214 subd. 5." (Emphasis in original.) The Villante court neither cited the recent Fifth, Sixth, and Eleventh Circuit cases, nor considered the rationale for applying the one year limitations period for intentional torts contained in N.Y. Civ. Prac. Law & R. § 215(3).

 We believe that there is much to support the position taken by the other circuits. However, the solicitude shown toward prisoners' complaints in the Second Circuit leads me to conclude that this Circuit would not agree to a period of limitations as short as one year. Indeed, in Pauk v. Board of Trustees of City Union of New York, supra, the court held,

 A federal court, searching for an analogous state limitations period for a § 1983 suit, should not select any period shorter than the two years Congress has specified as the time within which notice must be given of claims against the United ...

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