religious or spiritual leader, such as the Iman. Demskie also
determined that LaBoy had investigated fully the incident, and
Lott had an opportunity to have an inmate assistant, counselor
Donnelly, conduct an investigation on Lott's behalf. Lott does
not contest this denial.
Lott was provided the opportunity to tender documentary
evidence and to call witnesses on his behalf. Not only did Lott
testify, but he offered the testimony of Bunts and LaBoy as
well as documentary evidence consisting of a phone procedure
Lott had created and a document entitled "INVESTIGATION" which
Lott defined as an "affidavit" signed by inmates. During the
hearing, the transcript reflects that Lott never asked that the
individuals who signed the "INVESTIGATION" document be
interviewed or called as witnesses, nor did Demskie seek to
question or investigate this document. Demskie received Lott's
document entitled "INVESTIGATION" into evidence and considered
it, among all the evidence, before rendering a decision.
On November 13, 1989, Demskie conducted an in camera hearing
to examine LaBoy concerning her investigation and to examine an
eyewitness to the assault. LaBoy and the other confidential
witness testified out of the presence of Lott to ensure their
safety and the safety of LaBoy's confidential sources, a
transcript of which was offered to the court. LaBoy explained
how she conducted her investigation, and that on October 30,
1989, one of her confidential sources provided her with the
nicknames of the participants. In addition, another inmate
provided her with the cell locations of the participants which
correlated with the first confidential source's names. Then,
both confidential sources viewed photographs of these inmates
and identified the participants — including the plaintiff. On
October 31, 1989, a third confidential source, an eyewitness
who also testified at the in camera hearing, also identified
the plaintiff from a photograph. LaBoy also testified how she
had successfully relied upon her confidential sources on
earlier occasions. Lott does not contest the in camera review
of the sources' credibility.
On November 14, 1989, upon a complete review of the entire
record, including Lott's evidence, Demskie found plaintiff
guilty of violating DOCS Rules 100.10 (assault) and 104.11
(violent conduct) and not guilty of violating Rule 116.10
(property damage or loss). Accordingly, Demskie imposed a
penalty of confining Lott in a Special Housing Unit ("SHU") for
180 days as well as 180 days loss of telephone privileges upon
release from SHU.
Demskie advised Lott of his right to appeal directly to the
Commissioner of DOCS within thirty days and provided him with
an appeal form. Plaintiff prepared a letter requesting an
appeal to defendant Selsky. Selsky is the DOCS Commissioner's
designee to review Tier III disciplinary hearings. Selsky is
knowledgeable in the procedures and law concerning Tier III
hearings, especially the use of a confidential informant's
testimony. Selsky received Lott's letter to appeal his hearing
on November 28, 1989. Selsky reviewed the record and on January
17, 1990 affirmed Demskie's disposition. On January 18, 1990 a
copy of the decision was forwarded to plaintiff.
Defendant Scully had no personal involvement in plaintiff's
appeal. A superintendent has the discretion to review Tier III
hearings, and may reduce the penalty. Scully, however, notified
Lott by a letter dated January 18, 1990 that First Deputy
Superintendent Artuz ("Artuz") was his designee to review an
appeal at Green Haven. Accordingly, Scully had no direct
involvement in the appeal, he had no legal obligation to review
Lott's letter of appeal, and Artuz is not a party to this
Standards for Summary Judgment
To grant summary judgment the court must determine that no
genuine issue of material fact exists and that the moving party
is entitled to judgment as a matter of law. See Fed.R.Civ.P.
56(c). The court's responsibility is not to resolve disputed
issues of fact, Donahue v. Windsor Lock Bd. of Fire Comm'rs,
834 F.2d 54, 57 (2d Cir. 1987), but to determine whether there
are any factual issues to be tried, while resolving ambiguities
and drawing inferences against the moving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct.
2505, 2510-11, 91 L.Ed.2d 202 (1986) (citing Adickes v. S.H.
Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 1608-09, 26
L.Ed.2d 142 (1970)).
Nonetheless, summary judgment should be granted where no
reasonable trier of fact could find in favor of the non-moving
party. H.L. Hayden Co. of New York, Inc. v. Siemens Medical
Sys., Inc., 879 F.2d 1005, 1011 (2d Cir. 1989), and to enable
the court to dispose of meritless claims before becoming
entrenched in a costly trial. Donahue, 834 F.2d at 58 (citing
Knight v. U.S. Fire Ins, Co., 804 F.2d 9, 12 (2d Cir. 1986),
cert. denied, 480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762
Lott fails to state a claim under § 1983
The gravamen of Lott's complaint is that his hearing lacked
procedural constitutional safeguards to ensure him of a fair
and unbiased hearing. Specifically, Lott has abandoned his
claims that during the hearing he was denied the right to call
witnesses, the right to introduce documentary evidence, and the
right to have the hearing officer interview witnesses. Instead,
Lott now argues that defendant Demskie, the hearing officer,
was biased in his determination and failed to assess the
documentary evidence submitted by plaintiff.
The United States Supreme Court in Wolff v. McDonnell,
418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), addressed the
issue of minimum procedural due process rights which must be
afforded to inmates facing a disciplinary proceeding, a
violation of which could result in the loss of a
constitutionally protected liberty in interest. The
requirements prescribed in Wolff include advance written notice
of a claimed violation and a written statement from the
fact-finder describing the evidence relied upon and the reasons
for the disciplinary action taken. Id. at 563, 94 S.Ct. at
2978. Here, Lott received written notice of his violation and a
written statement of Demskie's decision.
Wolff also requires that an inmate be given a meaningful
opportunity to marshall and present evidence in his defense.
Id. at 566, 94 S.Ct. at 2979-80. At the same time, the Wolff
Court recognized that the operation of a prison is an
"extraordinarily difficult undertaking" and the prison
officials should be free to exercise their discretion "without
being subject to unduly crippling constitutional impediments."
Id. at 566-67, 94 S.Ct. at 2980.
The due process requirements established in Wolff and
reiterated in Freeman v. Rideout, 808 F.2d 949 (2d Cir. 1986),
cert. denied, 485 U.S. 982, 108 S.Ct. 1273, 99 L.Ed.2d 484
(1987), were fully complied with throughout Lott's disciplinary
proceedings. Defendant Demskie conducted the hearing which was
recorded electronically on November 6, 13, and 14, 1989.
Demskie explained the charges to Lott who entered a not guilty
plea. Lott had the right to call witnesses, introduce
documentary evidence, and review written reports accusing him
of the charges. Moreover, on November 13, 1989, Demskie
conducted an in camera hearing to question LaBoy concerning the
reliability and credibility of her confidential sources — the
basis of her investigation.
At the hearing Lott testified that he submitted a document
entitled "INVESTIGATION" as an "affidavit" signed by inmates.
The transcript reveals that Lott never asked Demskie to
interview any of the individuals who signed that document. In
any event, Demskie admitted this document into evidence, and no
evidence suggests that he failed to consider it among all the
evidence in rendering his decision. Demskie was under no
constitutional requirement to investigate further Lott's
Moreover, Lott was permitted to introduce documentary
evidence other than his "affidavit" entitled "INVESTIGATION."
During the hearing Lott tendered two additional documents.
Demskie made these documents part of the record. Indeed,
Demskie specifically asked Lott if he had any additional
information to be considered, and Lott stated he did not.
Accordingly, the hearing transcript makes clear that Demskie
possessed all the documentary evidence Lott wished him to
Lott's allegation that he was denied a fair hearing because
defendant Demskie was biased is without merit. Demskie allowed
plaintiff ample opportunity to introduce oral and documentary
evidence. Indeed, the hearing was conducted piecemeal to ensure
the availability of all the testimony Lott desired. Lott has
set forth absolutely no facts in his complaint alleging he
requested additional witnesses or wanted to have the inmates on
his "INVESTIGATION" affidavit interviewed. Accordingly, Demskie
accorded Lott the procedural due process safeguards as set
forth in Wolff, 418 U.S. at 563, 94 S.Ct. at 1886-87.
Lott contends, however, that Demskie predetermined Lott's
guilt and certainly, "it would be improper for prison officials
to decide the disposition of a case before it was heard."
Francis v. Coughlin, 891 F.2d 43, 46 (2d Cir. 1989). Lott's
only evidence in support of this alleged predetermination of
the issue is set forth at pages 21-23 of the hearing
transcript, specifically where Demskie states:
INMATE LOTT: And one other thing. I'm kind of
— now, at first I was really [inaudible] the way
the sergeant came in the block and got us. You
know, the thing happened, I think, on the 29th, and
she come get us on the 1st, or 2nd, whatever it was
H.O. DEMSKIE: Yes.
INMATE LOTT: — at night with handcuffs and, you
H.O. DEMSKIE: That was done after a consultation
with me, because I wouldn't allow the sergeant to
move any of you to A-2 until I was reasonably
assured that there was definitely some fairly
reliable source that was saying that it happened.
I mean I wasn't — I knew we had to be hearing
stuff, but I didn't want anything, any action taken
unless I was reasonably assured that the action was
warranted. And I [inaudible] until after she
completed her investigation —
INMATE LOTT: Actually, I could be wrong, but it
seems like what you're saying to me that, I think
that it happened and no matter what —
H.O. DEMSKIE: No —