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LOTT v. SELSKY

September 19, 1990

LEONARD LOTT, PLAINTIFF,
v.
DONALD SELSKY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Sweet, District Judge.

OPINION

Prior Proceedings

Lott commenced this action on December 26, 1989, pursuant to 42 U.S.C. § 1983, alleging that the DOCS defendants violated his constitutional rights at a Tier III hearing (the "hearing"). The DOCS Defendants answered, both sides conducted discovery, proposed pre-trial orders were exchanged, and on May 25, 1990 Lott moved for summary judgment. The DOCS Defendants cross-moved for summary judgment on June 12, and Lott replied on June 22, 1990. The Motion in Limine was also filed on June 14, 1990. These motions and the supporting documents from both sides were considered fully submitted as of July 6, 1990.

Facts

On October 29, 1989 at approximately 8:17 p.m., Larry Monroe ("Monroe"), an inmate at Green Haven was seriously assaulted by inmates and required immediate medical treatment at a local hospital. Correction Officers ("C.O.") Bunts and Rarer were on duty in C-cell block where the assault occurred. As a result of this incident, Sergeant Bobbie Jo LaBoy ("LaBoy"), who was on duty in C-cell block at the time of this incident, conducted an investigation to determine what occurred and to identify the assailants. LaBoy had conversations with three confidential informants: one who provided the nicknames of the assailants, one who provided the cell locations of the assailants, and one, an eyewitness, who, together with the other two, viewed inmate photographs and identified the plaintiff as one of the assailants.

On November 1, 1989, LaBoy prepared an inmate misbehavior report charging Lott with violating the following DOCS Rules: 100.10 (assault); 104.11 (violent conduct); and 116.10 (property damage or loss). Lott selected counselor Donnelly to assist him in preparing for the hearing. Defendant Demskie was designated as the hearing officer to conduct a hearing on these charges.

Demskie commenced the hearing on November 6, 1989.*fn1 Lott pled not guilty to the charges. Prior to Lott's plea, Demskie explained to Lott that he had a right to call witnesses on behalf and a right to offer documentary evidence. Earlier, Lott signed a document which named individuals he wanted interviewed as potential witnesses — Monroe, Bunts, and LaBoy. During the hearing, Lott said that he only intended to call Bunts and LaBoy, both of whom testified.

On November 13, 1989, Demskie attempted to call Monroe as Lott's witness because of Demskie's misimpression that Lott wanted Monroe to testify. Monroe refused to testify in Lott's presence and acknowledged his refusal in writing. Demskie's efforts became moot when Lott stated that he did not wish Monroe to testify. Accordingly, except for Lott's request to examine LaBoy and Bunts, the hearing transcript and prison records do not show that plaintiff requested additional witnesses and Lott no longer contests this point.

Lott made only one request that was denied by Demskie, a request to have the Muslim Minister, the Iman, investigate the assault. Demskie denied this request because an investigation concerning inmate misbehavior is not a responsibility of a 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 ...


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