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September 16, 1986

SAMUEL McNEAR, Plaintiff,

The opinion of the court was delivered by: TELESCA


MICHAEL A. TELESCA, United States District Judge

 Samuel McNear, currently incarcerated at the Auburn Correctional Facility, brings this action under 42 U.S.C. § 1983 against Thomas Coughlin, Commissioner of Correctional Services, Superintendent Wayne Barkley of the Groveland Correctional Facility, and Lewis Kordyl, a Corrections Officer at Groveland. Mr. McNear's pro se complaint contains the following statement of claim:

 On or about December 11, 1984, I was subjected to an illegally imposed disciplinary report, which immediately resulted in me being subject to prunitive [sic] segregation, thus, and an immediate transfer from a medium security prison to a maximum security prison, said illegal report caused my being reclassified, a unconstitutional transfer, and Superintendent's Hearing due-process denial, as well as deprivation of my hospital job at the medium security prison, 90 days segregation, 90 days loss of good-time, 90 days stripped of each and every other privilege thereof [sic].

 As relief, Mr. McNear requests a declaratory judgment, a preliminary injunction, compensatory, punitive, and nominal damages, as well as expungement of his prison disciplinary record.

 Defendants Barkley and Coughlin filed an answer in which they denied knowledge or information of all allegations. Defendant Kordyl answered separately and admitted that Mr. McNear had received a misbehavior report on December 11, 1984, and thereafter a Tier III Disciplinary Hearing was held on December 15, and as the result of which, the plaintiff received ninety days keep-lock and ninety days loss of movies, special events, commissary, and telephone privileges. Mr. Kordyl denied knowledge or information as to all other allegations of the complaint.

 On June 25, 1986, the plaintiff filed a motion for summary judgment, in which he argued that he is entitled to judgment as a matter of law because of the alleged illegality of his misbehavior reports and disciplinary proceedings. In July, the defendants submitted the affidavit of their attorney in opposition to Mr. McNear's motion for summary judgment, *fn1" and one week later, filed their own motion to dismiss or, in the alternative, for summary judgment.

 Because Mr. McNear is proceeding pro se, his complaint and moving papers must be held to a less stringent standard than similar papers drafted by an attorney. Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972) rehearing denied, 405 U.S. 948, 30 L. Ed. 2d 819, 92 S. Ct. 963 (1972); Washington v. James, 782 F.2d 1134 (2d Cir. 1986). Although Mr. McNear's complaint designates only one general claim, it appears after reviewing the file that the plaintiff is actually presenting two separate claims to this Court. Mr. McNear is claiming that the disciplinary hearing conducted on December 15, 1984, was illegal in two respects. He initially argues that the proceeding was invalid, and the resulting punishment unconstitutional, because of the New York Court of Appeals' decision in Jones v. Smith, 64 N.Y.2d 1003, 489 N.Y.S.2d 50, 478 N.E.2d 191 (1985). In addition, he argues that the hearing was unconstitutional because he was denied the right to call witnesses on his behalf. Because of the distinct nature of these two arguments, I will consider each of these as separate claims, and rule on them separately.

 I. Validity of Hearing in Light of Court of Appeals Decision

 In Jones v. Smith, 64 N.Y.2d 1003, 489 N.Y.S.2d 50, 478 N.E.2d 191 (1985), the New York Court of Appeals affirmed a lower court's ruling that disciplinary proceedings conducted against three prison inmates were not effective and that the proceedings were properly ordered expunged from prison records. The Court based its decision on Article IV, § 8 of the New York Constitution, which requires certain rules and regulations to be filed in the office of the department of state in order to be effective, and New York Executive Law § 102, which implements that constitutional mandate. Id., at 1004, 1005. In February, 1983, when Commissioner Coughlin issued Temporary Regulations II (known as the "three tier system") pertaining to disciplinary hearings, he failed to file these regulations with the Secretary of State. The Court of Appeals held that this omission nullified the disciplinary proceedings that took place prior to filing, stating:

 The requirement that the rules and regulations be filed serves to make them available to the public, to give the public notice thereof and provide a common and definite place . . . where the exact content of such rules and regulations, including any changes, might be found . . . a central place . . . where . . . anyone may examine in that one place what the law or rule is that . . . affect[s] his particular interest. Thus the filing of the rules and regulations serves to fulfill the "notice" component of due process. Id. at 1006 (citations omitted).

 Mr. McNear now argues that his disciplinary hearing was unconstitutional in light of the Court of Appeals' decision in Jones v. Smith. However, to be entitled to relief under 42 U.S.C. § 1983, Mr. McNear must show that the defendants' conduct deprived him of rights, privileges, or immunities secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535, 101 S. Ct. 1908, 1913, 68 L. Ed. 2d 420 (1981). It is precisely on this point that Mr. McNear's argument fails.

 The Court of Appeals based its decision in Jones on the New York State Constitution and New York State law. Even if Mr. McNear's disciplinary hearing was defective under New York State law (a determination which I do not make here), that does not automatically entitle him to judgment in this Court. Under § 1983, Mr. McNear must allege and prove a violation of federal law. A state employee's failure to conform to state law does not in itself violate the Constitution and is not alone actionable under § 1983. Patterson v. Coughlin, 761 F.2d 886, 891 (2d Cir. 1985), cert. denied, 474 U.S. 1100, 106 S. Ct. 879, 88 L. Ed. 2d 916 (1986), citing Davis v. Scherer, 468 U.S. 183, , 104 S. Ct. 3012, 3019, 82 L. Ed. 2d 139 (1984).

 In Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1975), the Supreme Court held that there are a number of procedural safeguards required by the United States Constitution when an individual's liberty is at stake, even when that individual's liberty is already limited because he is a prisoner. The inmate facing disciplinary charges that could result in punitive segregation is entitled, at a minimum, to advance written notice, at least 24 hours prior to his hearing, of the charges against him. He must be permitted to marshall the facts and prepare his defense. The inmate must be allowed to call witnesses and present documentary evidence in his defense, when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals. ...

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