Charles J. Scully and Stephen Adler bring an interlocutory appeal from a judgment of the United States District Court for the Southern District of New York (MacMahon, J.) dated September 3, 1987 insofar as it denies their motion for summary judgment in an action brought by George Eng pursuant to 42 U.S.C. § 1983 (1982). George Eng appeals from the judgment dated September 3, 1987 insofar as it grants Nathaniel Milligan's motion for summary judgment. Affirmed with respect to Milligan, reversed and remanded with respect to Scully and Adler.
Kaufman, Cardamone and Pierce, Circuit Judges.
CARDAMONE, Circuit Judge:
On this appeal we direct attention to the role of the qualified immunity and Eleventh Amendment defenses as they relate to an interlocutory appeal brought by state prison officials from a denial of their motion for summary judgment. Neither of these defenses were addressed by the district court. Of course, the essence of such defenses is a claimed right not to have to stand trial. When raised, therefore, they must promptly be considered by a trial court, and an order denying a summary judgment motion sought on the basis of either defense is subject to immediate appeal; otherwise, the right not to stand trial would be irretrievably lost. The merits of the defenses could be considered on this appeal, but such is not our customary practice, and prudence dictates that this case not be an exception.
We must also review whether a prisoner segregated from the general prison population--held incommunicado while facing prison disciplinary charges in a plexiglas cell--has any due process rights to assistance in preparing a defense to those charges. Here, though an assistant was assigned, no assistance was furnished. We recognize that no clearly established constitutional right to assistance under these circumstances existed at the time these events took place. But, in the future, the failure to render any assistance whatsoever to a prisoner so disabled will not be held to measure up to constitutional standards.
Appellant George Eng was committed to the custody of the New York State Department of Correctional Services (Department) at Auburn on December 23, 1977 to serve a life sentence. Five years later, on December 28, 1982, he was transferred from Auburn to Green Haven and placed in a Special Housing Unit (SHU) for infractions of prison disciplinary rules he incurred at Auburn. He was scheduled for release into the general prison population on January 26, 1983.
Two weeks before this release five incidents that are the subject of the instant litigation occurred. On January 12 and 13 three different encounters involving the use of force against appellant resulted in a number of disciplinary charges being laid against him. A fourth altercation occurred on January 14 when Eng was taken to a new gallery in the prison, different than the one in which he had been housed, and there ordered into a new cell with plexiglas sheets against the bars. Appellant's entry into the plexiglas cell, which involved the use of force, was captured on videotape. Later that day Eng was taken to the prison infirmary for his injuries and refused treatment.
As a result of the incident in the tank outside the plexiglas cell, Eng was charged with "assault," "threats," "refusing a direct order," and "interference." For refusing medical assistance, he was charged with "interference," "lying" and "abuse of privileges." From January 14 until January 26 he was confined for 20 hours a day to the plexiglas cell.
On January 18--upon being served with a formal charge in a Superintendent's Proceeding--he requested that defendant Nathaniel Milligan, a correction counselor, be assigned to assist him. Defendant Scully, Superintendent of Green Haven, granted the request. Eng and Milligan offer different accounts of the nature of the help requested. Eng claims that he told Milligan to interview "the whole gallery" including inmates known as "Kasa," "Zulu," and "Dance" and also asked for copies of the videotape and of certain documents in preparation for the hearing. Milligan reported to the hearing office that Eng desired assistance and wanted copies of relevant reports and the tape, but that he had not requested interviews of any witnesses. Milligan interviewed no witnesses and conducted no investigation of the just recited incidents.
Also on January 18 defendant Stephen Adler, the Director of Programs at Green Haven, was appointed by Superintendent Scully to conduct the hearing on the charges against Eng. That same day Adler signed a request from the Green Haven Executive team to transfer Eng out of Green Haven. Prior to the hearing Adler's supervisor, Deputy Superintendent Carl Berry, discussed with Adler Eng's "disciplinary problems." Eng contends that these discussions improperly influenced Adler.
Appellant pled not guilty to each of the seven charges, and gave his version of the events of January 12-14. Adler told Eng that the incidents on January 12 and 13 were irrelevant. At the conclusion of the first hearing, appellant made a number of requests, including one that Milligan assist him in identifying and interviewing inmate witnesses and that Adler review the videotape prior to the second hearing. Eng also requested copies of statements to be taken from the two physician's assistants, Use of Force reports, medical reports, and reports for mechanical restraints. The hearing was adjourned in order for Adler to conduct an investigation.
Eng and the defendants disagree about what actions Adler and Milligan took in furtherance of the investigation or to assist Eng and about the extent to which these actions conformed to Eng's requests. Milligan did not speak with Eng but again reported, based on other officers' comments, that Eng requested no witnesses. Adler interviewed correction officer Dean--who was present and involved in the events of January 12 and 13--and two physician's assistants.
On January 26 Eng was transferred to the Clinton Correctional Facility. Adler reconvened the Superintendent's Proceeding there on January 28, 1983 and stated why he did not review the videotape and why he would not provide copies of the documents that Eng had requested. Adler found Eng guilty at the time of cell transfer of assaulting officer Dean, threatening officers, interfering with officers' duties, and refusing a direct order to enter his cell. Adler also found Eng guilty, in the infirmary incident, of interfering with the medical staff and abuse of privilege. A sentence of 360 days disciplinary confinement in SHU and 360 days loss of good time was imposed. The reason Adler gave for this disposition was the "serious nature of the charges." The defendants argue that the loss of good time is irrelevant in light of Eng's life sentence. Eng notes that this sentence was the longest Adler had ever imposed and that it exceeded Department guidelines.
The disciplinary case was subject to automatic review by the Departmental Review Board. Defendant Donald Selsky, in the Department's Special Housing office in Albany, New York, reviewed the written record and affirmed defendant Adler's disposition of the four charges arising from the plexiglas cell incident. Selsky also affirmed the interference charge, but dismissed the abuse of privileges charge arising from the infirmary incident, and therefore reduced the penalty to 330 days of SHU confinement.
Appellant commenced an Article 78 proceeding in New York State Supreme Court. Without reaching the merits of Eng's claims, that court granted his petition on the ground that the complete transcript of the proceedings had not been provided to it and that Adler's taped interview with Dean was missing. Eng had served his full 330 days by the time of decision, but his record was expunged of the disciplinary charges and convictions.
B. Proceedings in the District Court
Eng commenced the two instant 42 U.S.C. § 1983 actions in the United States District Court for the Southern District of New York (MacMahon, J.) which, as consolidated, name as defendants Scully, Adler, Selsky, Milligan, Thomas A. Coughlin, III, Commissioner of the Department of Corrections, and Charles Hernandez, Director of Special Housing/Inmate Discipline Programs and a member of the Departmental Review Board. Eng alleged that these six defendants violated his federal ...