The opinion of the court was delivered by: Sand, District Judge.
Defendants Michael Parrot, Gary Bezio and Dale LaBombard, all
officers at the Clinton County Correctional Facility, have
filed a motion to dismiss the complaint filed by pro se
plaintiff Nache Afrika, who has alleged that these defendants
violated his right to due process under 42 U.S.C. § 1983 during
a 1986 disciplinary hearing.
Defendant Andrew Ryan, former district attorney of Clinton
County, who presented an assault case against Afrika to a grand
jury, has also moved to dismiss Afrika's malicious prosecution
claim against him.
Defendant Donald Selsky, Director of Special Housing/Inmate
Discipline, upheld the results of the disciplinary hearing.
Plaintiff Afrika claims that Selsky's review was
constitutionally deficient, that he knew of the alleged due
process violations that occurred during the hearing when he
affirmed the disposition, and that he falsely imprisoned Afrika
in segregated housing during the six-day delay between his
reversal order and Afrika's release. Defendant Selsky denies
these assertions and has moved for summary judgment.
For the reasons that follow, we grant the motions to dismiss
the claims against defendants Parrot, Bezio, LaBombard and
Ryan, and also grant Selsky's motion for summary judgment.
On March 20, 1986 plaintiff Nache Afrika was charged with
assaulting a corrections officer and disobeying a direct order.
Afrika, a prisoner at the Clinton County Correctional Facility,
allegedly objected to Officer Bezio's frisk technique and
struck Bezio over his left eye. On April 2, 1986, after two
days of testimony, hearing officer Parrot found Afrika guilty
of both charges. He based his decision on the testimony of
Officers Bezio and LaBombard (eyewitnesses), Officer O'Brian
(who was watching the television monitors), and other witnesses
who arrived after the alleged attack. None of the witnesses
called provided testimony supporting Afrika's claim of
innocence. Afrika objected that several witnesses he had
requested and who could prove his innocence were not called.
Parrot claimed that their testimony was irrelevant, that he had
heard enough to corroborate Bezio's report, and further that
after watching the video tape of the incident, he did not
believe that any of the uncalled witnesses were present at the
scene of the incident. (Selsky Affidavit, Exhibit G, at 32.) He
then sentenced Afrika to ninety days in the Special Housing
Unit ("SHU") to be served consecutively with another SHU
sentence unrelated to this action. On June 9, 1986, Donald
Selsky, Director of Special Housing/Inmate Discipline, affirmed
the disposition of the hearing "based on a review of the
hearing documents." (Selsky Affidavit, ¶ 13).
On June 26, 1986 plaintiff commenced an Article 78 proceeding
in the Clinton County Superior Court before Justice William
Intemann, Jr. challenging both Bezio's report and Parrot's and
Selsky's determinations. On August 11, 1986, Justice Intemann
issued an order to show cause why relief should not be granted
to Afrika, requiring the prison officials to respond by
September 9. Afrika began the SHU confinement relevant to this
dispute on August 12. On September 4, 1986, Assistant Attorney
General Tucker phoned Selsky, who was not a party to the
Article 78 proceeding, and informed him that Parrot had
a procedural error by not writing down the reasons for his
denial of witnesses as required by state law. (Selsky
Affidavit, ¶ 17).
On September 5, 1986, Selsky voluntarily reversed the hearing
disposition and sent the reversal and expungement orders via
pouch mail to the Green Haven facility where Afrika was
confined in SHU. On September 11, six days after Selsky
prepared the papers, plaintiff was released from SHU. The
release occurred within 24 hours of receipt of the
Defendant Ryan, the Clinton County District Attorney at the
time, separately presented to a grand jury the facts of the
March 20, 1986 incident in the prison. On May 26, 1986, the
grand jury for Clinton County returned an indictment against
Afrika charging him with the assault of Officer Bezio. (Amended
Complaint, ¶ 27). This indictment was dismissed on October 8,
1986. (Amended Complaint, ¶ 36).
On June 1, 1987, Afrika filed his original complaint in the
United States District Court for the Western District of New
York. He alleged that Selsky and the SHU personnel (Scully,
Winch and Weitz) unlawfully confined him for six days after
Selsky's reversal. On November 3, 1987, the case was
transferred to the Southern District of New York.
On June 3, 1988, defendants Selsky, Scully, Winch and Weitz
moved for summary judgment. This court granted the motion on
January 31, 1989 as to defendants Scully, Winch and Weitz
because they lacked personal involvement in the delay: within
twenty four hours of receipt of notification to release Afrika
from SHU, they complied with the order. However, we denied
summary judgment to Selsky because we held that the existence
of a state court order requiring Afrika's release on August 11,
1986 was a fact in dispute. (Opinion at 6). We held that Afrika
had stated a claim if Selsky had in fact delayed his release
either from August 11 to September 11, or from September 6 to
On March 16, 1989, defendant Selsky again moved for summary
judgment claiming qualified immunity. Plaintiff requested leave
to amend his initial complaint on April 21, 1989, and we
granted his request on May 30, 1989. Further, we denied
Selsky's motion for summary judgment without prejudice to its
renewal after plaintiff amended his complaint.
Plaintiff amended his complaint on July 10, 1989 adding
defendants Parrot, LaBombard, and Bezio and defendant Ryan.
Afrika alleged that he was wrongfully denied witnesses at the
prison hearing and that Selsky affirmed the disposition knowing
that Afrika's due process rights had been violated. (Amended
complaint, ¶¶ 37-39). Moreover, plaintiff claimed that the
procedures for transmitting release orders were
unconstitutional (Id. at ¶¶ 55, 56, 63-69), that the
administrative review procedures were constitutionally
deficient (Id. ...