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June 25, 1990


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 committed 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 notification.

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 September 11.

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. ...

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