present documentary evidence in his defense when permitting him
to do so will not be unduly hazardous to institutional safety
or correctional goals." Id. at 566, 94 S.Ct. at 2979. This
seminal decision provided prison authorities with broad
discretion stating that "officials may deny an inmate's request
to call witnesses whether it be for irrelevance, lack of
necessity or the hazards presented in individual cases." Id. at
566, 94 S.Ct. at 2980. Hence, though the denied witnesses might
have provided testimony to exculpate Afrika, Afrika was not
entitled to the "full panoply of rights due a defendant in a
criminal prosecution." Id. at 556, 94 S.Ct. at 2975. The
hearing officer's denial based on "irrelevance" and sufficient
corroboration from those witnesses already called meets the
bare minimum required by Wolff. Thus no due process violation
took place at Afrika's hearing.
Recently the Second Circuit decided a case very much like
plaintiff's in which a hearing officer denied additional
witnesses because he felt their testimony would be redundant
and would "jeopardize institutional efficiency." Fox v.
Coughlin, 893 F.2d 475 (2nd Cir. 1990). Even though the hearing
officer did not define the jeopardy to the institutional
interest, the Second Circuit held that under the Wolff standard
this was a constitutionally sufficient reason for denial. The
court expressed skepticism about the hearing officer's
justification for denying additional witnesses: "[H]ere the
hearing officer had no reason to believe the testimony of the
two officers would be redundant . . . [T]he only basis for the
officer's decision was that Spreer and McCaffey endorsed the
Report, which alone is insufficient to conclude their testimony
would be cumulative . . . Nor did Fox pose any threat to
institutional safety." Id. at 478. Nonetheless, the court
deemed itself to be bound by the flexible standard of Wolff and
thus did not find a due process violation.
Courts have found violations of due process in cases where
the prisoner had neither ample notice nor the opportunity to
call any witnesses at all. Patterson v. Coughlin, 761 F.2d 886
(2nd Cir. 1985). Additionally, courts have concluded that
administrators violate the right to due process when a
defendant is not advised of his right to witnesses and is
sentenced to disciplinary confinement without the benefit of a
fair hearing. Williams v. Smith, 781 F.2d 319 (2nd Cir. 1986).
In this case, however, Afrika did call witnesses, none of whom
were too helpful to his case. When the hearing officer had
determined that further witnesses would be "irrelevant," he was
entitled to deny Afrika's request. "The extraordinarily
difficult undertaking of running a prison requires that prison
administrators be afforded a broad range of discretion."
Morrison v. Lefevre, 592 F. Supp. 1052, 1071 (S.D.N.Y. 1984).
"In determining whether a prison disciplinary committee
properly excluded a witness from a hearing, because of the
exigencies of the prison environment, and the need for prison
officials to maintain safety and discipline, a reviewing court
must accord due deference." Freeman v. Rideout, 808 F.2d 949,
954 (2nd Cir. 1986). This court then, must respect the hearing
officer's judgment absent a flagrant due process violation. We
find that Afrika sustained no due process deprivation by virtue
of his inability to call all of the witnesses of his choice.
We must also consider whether Selsky's alleged knowledge of
the state procedural violation gives rise to a cause of action
under section 1983. We find that it does not. Afrika claims
that Selsky violated his right to due process by affirming the
hearing disposition even though Selsky knew that Parrot had
failed to provide written justification for the denial of
witnesses as mandated by state statute.*fn1 Since we find that
there are disputed issues of fact regarding Selsky's knowledge,
we will assume for the purposes of this motion that Selsky did
in fact know of the procedural violation.
The Supreme Court has consistently refused to require prison
officials to provide
written justifications for their refusal to call witnesses.
See Ponte v. Real, 471 U.S. 491, 105 S.Ct. 2192, 85 L.Ed.2d 553
(1985). Thus we must look to the state statute to determine
whether or not a liberty interest has been created.
To determine whether the state has created a liberty interest
a court should look for "the repeated use of explicitly
mandatory language in connection with requiring specific
substantive predicates." Hewitt v. Helms, 459 U.S. 460, 472,
103 S.Ct. 864, 871, 74 L.Ed.2d 675 (1983). Courts that have
applied the Hewitt "explicitly mandatory language" rule have
stated that the mere adoption by the state of procedural
guidelines without more is insufficient to give rise to a
liberty interest protected under the Fourteenth Amendment. See
Matiyn v. Henderson, 841 F.2d 31 (2nd Cir. 1988).
In Afrika's case, the state statute did not grant substantive
rights but merely served to insure, through procedural
requirements, that the prisoner would be afforded a fair
hearing. The liberty interest that the state accords to
prisoners is the right to due process before being sentenced to
disciplinary confinement, not the right to written
justification for denial of witnesses. Parrot did inform Afrika
during the hearing that he thought that his witnesses were
"irrelevant" and that he thought that they were not present at
the time of the incident. Thus Afrika cannot, and indeed does
not, claim that he did not know why his witnesses were refused.
Accordingly, since Afrika received a fair hearing, the fact
that Selsky affirmed the disposition regardless of a state
procedural violation (which affected neither the substance nor
the outcome of the hearing), did not violate section 1983.
"Although a due process liberty interest may be provided in
state law that places substantive limits on the authority of
state officials, no comparable entitlement can derive from a
statute that merely establishes procedural requirements."
Cofone v. Manson, 594 F.2d 934, 938 (2nd Cir. 1979). "State
procedural requirements do not establish federal constitutional
rights . . . [A]t most, any violation of state procedural
requirements would create liability under state law." Bolden v.
Alston, 810 F.2d 353, 358 (2nd Cir. 1987).
Consequently, the New York statute requiring written
justification for denial of witnesses, while an important
procedural safeguard, does not confer a liberty interest. The
statute does not contain "repeated use of explicitly mandatory
language," nor does it grant any specific substantive interests
to the prisoner. Thus because this statute is procedural in
nature, neither the hearing officer's violation nor Selsky's
affirmance violated Afrika's right to due process.
In assessing Selsky's liability for the review and the state
procedural violation we find that Selsky's review, while not
the most thorough, did meet the Superintendent "any evidence"
standard. Moreover, his affirmance of the hearing disposition
despite the violation of a state procedural requirement did not
violate section 1983. Thus we grant summary judgment in his
favor on this issue.
Since we have determined that Selsky's review was
constitutionally sufficient, we need not reach the question of
his entitlement to qualified immunity. Moreover, although there
is no need to address Selsky's third defense (since his review
was adequate) we find that because both the hearing and the
review reached the minimal standards, he did not violate
Afrika's liberty interest in not being confined without due
We now turn to Selsky's final defense regarding the
constitutionality of the method of transmitting the reversal
order to SHU. In our prior Opinion of January 31, 1989, we
denied summary judgment to Selsky because we believed at that
time that a genuine dispute existed as to whether the state
judge ordered Afrika's release on August 11, 1986. Afrika has
not produced any evidence of such a court order. We therefore
find as a matter of undisputed fact that no such order was
issued on August 11, 1986. We will now consider only the delay
in the transmittal of the release order which caused Afrika to
remain in SHU for an additional six days and not the
twenty-five day delay we discussed in our prior Opinion.
This Court believes that overnight mail and facsimile
machines which did exist in 1986 could have been used to spare
the plaintiff the six extra days spent in SHU. However, it is
not for us to impose administrative procedures which may have
been prohibitively expensive, nor do we have the right to
second guess the viability of such options. In the area of
state prisons, the federal courts should refuse to interfere
with internal state prison administration except in the most
extreme cases involving a shocking deprivation of rights.
Baldwin v. Smith, 446 F.2d 1043 (2nd Cir. 1971). In this case
there was no shocking deprivation of rights. A prisoner has no
fourteenth amendment liberty interest in remaining in the
general prison population. Deane v. Dunbar, 777 F.2d 871 (2nd
The Supreme Court has declared that discipline and
administration of state detention facilities are state
functions and are subject to federal authority only when
paramount federal constitutional or statutory rights intervene.
Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718
(1969). Here there are no such overriding federal
considerations. Afrika was in no way discriminated against by
the pouch mail procedure. He has not sufficiently alleged that
he was singled out or that other prisoners were released by
more expedient methods. Nor is the procedure lacking in
fundamental fairness depriving him of due process. Afrika was
being released from a more restrictive environment to a less
restrictive environment, not from prison to the outside world.
Even in cases in which administrative procedures have delayed
the release of a parolee by six days, the courts have
considered the delay constitutional because "admittedly the
plaintiff's liberty is at stake, but liberty, under the
Constitution, is subject to the restraints of due process and a
regulation complies with the demands of due process when it is
reasonable in relation to its subject and is adopted in the
interest of the community." Burgess v. Roth, 387 F. Supp. 1155,
1159 (E.D.Pa. 1975).
While it may not be perfect, we believe the pouch mail system
is reasonable in relation to the subject of prisoner release
and was adopted in the interest of the safety of the prison
community. We also find that while it may have been quicker and
more equitable for Selsky to have used overnight mail or a fax
machine, we cannot penalize him if those were not the standard
procedures in use in the prison system at that time. Since
courts have allowed similar delays of release from prison, we
cannot justify a higher standard requiring immediate release
from disciplinary confinement to the general prison population.
Thus we grant Selsky's motion for summary judgment on the issue
of the constitutionality of the administrative procedure used
to obtain Afrika's release.
For the foregoing reasons we grant the motions to dismiss to
defendants Parrot, Bezio, LaBombard, and Ryan and the motion
for summary judgment to defendant Selsky.