United States District Court, Southern District of New York
July 2, 1991
CLIFFORD HOWARD, PLAINTIFF,
LIEUTENANT WALTER WILKERSON, LIEUTENANT MICHAEL STOKES AND SUPERINTENDENT JAMES SULLIVAN, DEFENDANTS.
The opinion of the court was delivered by: Robert P. Patterson, Jr., District Judge.
OPINION AND ORDER
This is an action brought by a prisoner under 42 U.S.C. § 1983
alleging due process and equal protection violations
stemming from disciplinary proceedings invoked against him
while he was an inmate at the Sing Sing Correctional Facility
in 1984. Plaintiff moves pursuant to Rule 56 of the Federal
Rules of Civil Procedure for partial summary judgment on his
claims against defendant Lieutenant Michael Stokes ("Stokes").
Defendants cross-move for summary judgment dismissing the
complaint. For the reasons set forth below, plaintiff's motion
is granted in part and denied in part and defendants' motion is
granted in part and denied in part.
On October 11, 1984 Jose Figueroa ("Figueroa"), an inmate at
the Sing Sing Correctional Facility, was allegedly attacked by
a group of other inmates on a staircase outside the mess hall.
No corrections officers witnessed the incident. Exh. B at 2,
Howard Aff. A handwritten report by W. Stoddard, the
corrections officer who took Figueroa to the emergency room
after the attack, states:
He [Figueroa] said "There was five of them and
they were all black, and one of them piped me. I
heard the others call him `Cash.' I don't know
the other guys names, I just got here."
Exh. M, Howard Supp. Aff. However, when Lieutenant Walter
Wilkerson ("Wilkerson") later interviewed Figueroa about the
incident, Figueroa named plaintiff Clifford Howard ("Howard")
as one of the attackers and identified him from photographs
Wilkerson showed him. Wilkerson Aff. ¶¶ 7-8.
On October 12, 1984 Wilkerson ordered that Howard be placed
in keeplock confinement pending a disciplinary hearing. Howard
Aff. ¶ 2 & Exh. B (Response No. 1 to Plaintiff's Request for
Admissions). On October 15, 1984 Wilkerson filed an inmate
misbehavior report against Howard. Id. ¶ 10 & Exh. A.
M.L. Hurston ("Hurston"), a corrections counselor appointed
to assist Howard in preparing for his disciplinary hearing,
interviewed Howard on October 16, 1984 and submitted a written
statement on his behalf in essence stating that Howard denied
any involvement in the attack. Id. ¶ 4; Exh. B, Wilkerson
At 9:55 p.m. on October 20, 1984 Lieutenant Michael Stokes
("Stokes") convened a "Tier III" or "superintendent's"
proceeding against plaintiff.*fn2 Stokes Aff. ¶¶ 6, 10. Stokes
alleges that because his shift started at 3:00 p.m. and he had
he frequently held disciplinary hearings after the facility
"locked down" at 9:00 p.m. Id. ¶ 18.
The transcript of Stokes' remarks at the hearing include the
statement that Howard "has refused to attend this hearing."
Id., Exh. A. Plaintiff claims, and defendants have admitted,
that the officers assigned to bring plaintiff to the hearing
informed plaintiff that they were taking him to the "adjustment
committee" for an "adjustment hearing." Exh. A at 4-5, Stokes
Aff.; Response No. 4 to Plaintiff's Request for Admissions.
Plaintiff responded he was afraid to leave his cell at that
time of night. Id. Plaintiff further alleges that he told the
officers that he knew he had a "superintendent's hearing" but
that he knew nothing about a so-called "adjustment hearing."
Exh. G, Howard Aff. The officers thereupon informed Howard that
Stokes would conduct the hearing in plaintiff's absence.
Wilkerson claims in his affidavit that in 1984 the term
"adjustment committee" was commonly used to refer to both the
room at Sing Sing in which disciplinary hearings were
conducted and to refer to the proceedings themselves.
Wilkerson Aff. ¶ 16.
The hearing was opened at 9:55 p.m. After reading the
charges and a notation of M.L. Hurston who had been assigned
as plaintiff's counselor (but was not present), Stokes
adjourned plaintiff's Tier III hearing at 10:00 p.m. to reach
a decision. Fifteen minutes later, Stokes reopened the
proceeding and found Howard guilty of violating Rule 100.10
(assault). Stokes Aff. ¶¶ 10-11. In a document entitled,
"Superintendent's Hearing Disposition Rendered," (hereinafter
the "record of disposition") Stokes listed the evidence he
relied upon as "Base [sic] on Officers Report & Inmates Written
Statement." In his opposing affidavit, Stokes claims he relied
not only upon Wilkerson's report but on earlier oral reports
from Wilkerson and Officer Brady who assisted Wilkerson and
oral statements from certain other gallery and block officers
as well as Howard's written statement. Id. ¶ 12.*fn3 Stokes
sentenced Howard to 365 days of keeplock confinement but
suspended 90 days of that sentence and gave credit for time
served. Stokes also revoked Howard's telephone and commissary
privileges for six months. Id. ¶ 11.
Two days later, on October 22, 1984, Howard submitted a
"Request for Interview or Information" addressed to the
"Commissioner of Sing Sing C.F." stating that he was innocent
and had never been given the chance to attend the hearing and
prove it. Exh. N, Howard Supp. Aff. Stokes conducted a second
hearing on October 29, 1984, at which plaintiff again was not
present, to review the circumstances surrounding plaintiff's
absence from the October 20 Tier III proceeding. Plaintiff
claims he was never notified of the October 29 hearing and
there is no evidence that he was notified of the hearing.
Howard Aff. ¶ 8. Stokes interviewed the officers involved in
summoning plaintiff to the Tier III hearing. Exh. G, Howard
Aff. Sergeant Leo Mollette stated at the hearing that when he
confronted plaintiff in his cell that night:
[Plaintiff] stated to me that he was having a
Supts. proceeding and that he didn't think that
Supt. would send for him at this particular time
of night. I informed him that the hearing can be
held anytime or that he would have to go down to
the Adjustment Committee and tell them his
problem here. He refused. He said, I'm not coming
out of my cell at this time of night. I don't
know what y'all are here for, but I'm afraid to
come out of my cell at this time of night to go
Exh. G at 2, Howard Aff. (transcript).
On October 30, 1984 Howard filed an appeal to James Sullivan
("Sullivan"), the superintendent of Sing Sing Correctional
Facility. Id., Exh. O. On November 13, 1984 Sullivan affirmed
Stokes' decision and sentence. Id.
Summary judgment is appropriate if the evidence offered
demonstrates that there is
no genuine issue as to any material fact and the moving party
is entitled to judgment as a matter of law. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202
(1986). The burden rests on the moving party to demonstrate the
absence of a genuine issue of material fact, Adickes v. S.H.
Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d
142 (1970), and the Court must view the facts in the light most
favorable to the non-moving party. United States v. Diebold,
Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176
1. Timeliness of the Tier III Hearing
Plaintiff claims that he was held in keeplock confinement
for eight days prior to the superintendent's hearing in
violation of New York regulations requiring that a Tier III
hearing be held, absent exigent circumstances, within seven
days of the inmate's initial confinement. Plaintiff relies on
Morrison v. Lefevre, 592 F. Supp. 1052 (S.D.N.Y. 1984), imposing
§ 1983 liability on prison officials who kept plaintiff
confined for a total of 23 days prior to holding a disciplinary
hearing. Id. at 1067, 1074. In this case, plaintiff's
confinement for one additional day beyond the permissible limit
does not amount to a constitutional violation redressable under
§ 1983. Accordingly, defendants' motion for summary judgment on
this issue is granted and plaintiff's motion is denied.
2. Conduct of the Tier III Hearing
It has been well-established for many years that "an inmate
is . . . constitutionally entitled to a hearing and an
opportunity to speak in his own defense" when accused of a
disciplinary violation. Wolff v. McDonnell, 418 U.S. 539, 581,
94 S.Ct. 2963, 2987, 41 L.Ed.2d 935 (1974) (Marshall, J.,
concurring in part and dissenting in part). See also Francis v.
Coughlin, 891 F.2d 43, 48 (2d Cir. 1989) (under Wolff,
"[i]nmates do enjoy . . . a limited right to be informed about
and to comment on adverse evidence"); Sostre v. McGinnis,
442 F.2d 178, 198 (2d Cir. 1971) (in order to be "minimally fair
and rational," a prison disciplinary hearing must afford the
accused inmate "a reasonable opportunity to explain his
actions"), cert. denied, 404 U.S. 1049, 92 S.Ct. 719, 30
L.Ed.2d 740 (1972).
The Supreme Court has held that in connection with a prison
disciplinary hearing, due process requires that an inmate be
provided with (1) advance written notice of the disciplinary
charges; (2) an opportunity, when consistent with
institutional safety and correctional goals, to call witnesses
and present documentary evidence in his defense; and (3) a
written statement by the factfinder of the evidence relied on
and the reasons for the disciplinary action taken. See Wolff v.
McDonnell, 418 U.S. at 563-67, 94 S.Ct. at 2978-80.
Plaintiff claims that because he was misinformed on October
20, 1984 that he was being summoned to an "adjustment hearing"
as opposed to the "superintendent's hearing" actually being
held, his refusal to attend was justified and that continuing
with the proceeding in his absence violated his rights to due
process under Wolff v. McDonnell by depriving him of the
opportunity to comment upon the evidence against him and call
witnesses in his defense.
New York regulations governing superintendent's hearings
provide that the inmate "shall be present at the hearing
unless he refuses to attend. . . ." N.Y.Comp. Codes R. & Regs.
tit. 7, § 254.6(b) (1990). Under ordinary circumstances, when
an inmate voluntarily waives his appearance before a
disciplinary hearing officer, he cannot then attack the
adjudication as violative of his constitutional rights. See
Ghana v. Fauver, No. 85-3545, 1989 WL 61872 (D.N.J. June 9,
1989), aff'd, 887 F.2d 261 (3d Cir. 1989); Morgan v. Ward,
699 F. Supp. 1025, 1044 (N.D.N.Y. 1988); Adargo v. Barr, 482 F. Supp. 283,
286 (D.Colo. 1980). An inmate's refusal to attend a
disciplinary hearing waives his due process objections,
however, only when it occurs "through no fault of prison
officials." See Moody v. Miller, 864 F.2d 1178, 1181 (5th Cir.
1989). See also Sanders v. Coughlin, 168 A.D.2d 719, 564
N.Y.S.2d 496, 498 (1990) ("Unless an inmate knowingly,
voluntarily and intelligently relinquishes his right to attend
the hearing . . . he must be present."), appeal denied,
77 N.Y.2d 806, 571 N.E.2d 84, 568 N.Y.S.2d 914 (1991).
In this case, a jury may find fault by prison officials.
There is evidence that corrections officers approached
plaintiff at an unusual time of night and used a term no
longer in official use to refer to proceedings designated at
that time as "superintendent's" hearings.*fn4 Advising a
prisoner of the need to escort him from his cell in the late
evening to attend a type of hearing for which he is not
scheduled could well be threatening especially when the
prisoner is charged with a serious breach of discipline.*fn5
Although Howard stated that he was awaiting a
"superintendent's" hearing, there is no evidence that Sgt.
Mollette or any other officer explained or attempted to
explain that the "adjustment" hearing for which they were
summoning plaintiff was in fact his superintendent's hearing.
Whether guards and inmates at Sing Sing widely understood that
the term "adjustment hearing" referred to a superintendent's
hearing, as defendants contend, is an issue of fact.
Furthermore, Stokes' scheduling hearings for a time
approximately one hour after a prison is locked down, normally
an unusual time, raises an issue of fact as to whether an
inmate would not have been expected to refuse to attend.*fn6
Accordingly, the parties' motions for summary judgment on this
issue are denied.
3. Sufficiency of the Evidence Relied Upon
A prison disciplinary action "does not comport with `the
minimum requirements of procedural due process' . . . unless
the findings of the prison disciplinary board are supported by
some evidence in the record." Superintendent, Mass.
Correctional Inst. v. Hill, 472 U.S. 445, 454, 105 S.Ct. 2768,
2773, 86 L.Ed.2d 356 (1985) (emphasis added). Since Hill, it
has been held that hearsay evidence does not constitute "some
evidence." See Vasquez v. Coughlin, 726 F. Supp. 466, 471
(S.D.N.Y. 1989). See also Wolfe v. Carlson, 583 F. Supp. 977,
982 (S.D.N.Y. 1984) (pre-Hill) ("[W]hen a committee imposes
discipline based solely on the report by a prison official of
what an informant claims to have witnessed with no information
as to the identity or reliability of the informant, it has
acted arbitrarily.").*fn7 Plaintiff claims that his due
process rights were violated because Stokes based his finding
of guilt at the Tier III hearing solely upon Figueroa's hearsay
identification of plaintiff contained in Wilkerson's inmate
With respect to this claim, defendants assert they enjoy
qualified immunity, a doctrine which protects government
officials sued in their personal capacities from liability for
discretionary acts provided their conduct did not violate any
"clearly established" federal statutory or constitutional
rights existing at the time. See
Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 3038,
97 L.Ed.2d 523 (1987); Davis v. Scherer, 468 U.S. 183, 190-91,
193-96, 104 S.Ct. 3012, 3017-18, 3018-20, 82 L.Ed.2d 139
(1984), reh'g denied, 468 U.S. 1226, 105 S.Ct. 26, 82 L.Ed.2d
919 (1984); Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct.
2727, 2738, 73 L.Ed.2d 396 (1982).*fn8 Whether a federal right
was "clearly established" at the time of a challenged action is
an issue of law for the Court, see Yalkut v. Gemignani,
873 F.2d 31, 35 (2d Cir. 1989), and should be resolved at the
earliest possible stage of the litigation. See Harlow, 457
U.S. at 818, 102 S.Ct. at 2738. If the law was not "clearly
established" at the time of the purported violation, summary
judgment dismissing the claims against the official is
appropriate. See Walentas v. Lipper, 862 F.2d 414, 422 (2d Cir.
1988), cert. denied, 490 U.S. 1021, 109 S.Ct. 1747, 104 L.Ed.2d
It is thus necessary to examine whether it was "clearly
established" in October 1984 that a hearing officer's failure
to assess the credibility of hearsay information relating to
inmate misbehavior constituted a violation of due process. In
Wolfe v. Carlson, 583 F. Supp. 977 (S.D.N.Y. 1984), a case
decided in this district in April 1984, the court held that
when a prison disciplinary committee "is given some means to
evaluate the truth or falsity of the information on which it
has based its action," id. at 982, it acts in a sufficiently
non-arbitrary fashion to meet the requirements of due process.
In addition, numerous courts in other circuits had held by 1984
that when a prison official relies on hearsay information
derived from a confidential informant,*fn9 due process
requires the official to assess the reliability of the
informant. See, e.g., Kyle v. Hanberry, 677 F.2d 1386, 1390
(11th Cir. 1982); Helms v. Hewitt, 655 F.2d 487, 503 (3d Cir.
1981), rev'd on other grounds, 459 U.S. 460, 103 S.Ct. 864, 74
L.Ed.2d 675 (1983); Goble v. Wilson, 577 F. Supp. 219, 220
(W.D.Ky. 1983); Rinehart v. Brewer, 483 F. Supp. 165, 170
(S.D.Iowa 1980); Bartholomew v. Reed, 477 F. Supp. 223, 228
(D.Or. 1979), modified on other grounds, 665 F.2d 915 (9th Cir.
1982); Finney v. Mabry, 455 F. Supp. 756, 772 (E.D.Ark. 1978).
These cases together with Wolfe v. Carlson indicate that the
due process rights plaintiff seeks to vindicate were "clearly
established" at the time of his October 1984 disciplinary
proceeding.*fn10 Cf. Gittens v. Sullivan, 720 F. Supp. 40
(S.D.N.Y. 1989) (right not established in Second Circuit by
1987). No disciplinary hearing officer could have reasonably
believed that merely accepting the written report of an officer
not present at an alleged attack met the requirements of due
process. Indeed if this were enough there would be no purpose
in holding a hearing at all. Accordingly, defendants are not
entitled to qualified immunity in relation to this claim.
Stokes' record of disposition indicated that the only
evidence of guilt he relied upon was Lieutenant Wilkerson's
inmate misbehavior report. No live testimony was received. No
effort was made to test the truthfulness of Figueroa's
accusation or to conduct a Wade-type examination into the
manner of identification of plaintiff. A proceeding of this
type could only constitute
a "hearing" in the most literal sense. See Wolff v. McDonnell,
418 U.S. at 582, 94 S.Ct. at 2987 (Marshall, J., dissenting in
part) (when an inmate is afforded no means to challenge the
word of his accusers, the hearing "will amount to little more
than a swearing contest . . . [in which] even the wrongfully
charged inmate will invariably be the loser"). Stokes' failure
to assess Figueroa's credibility is significant due to the
existence of an earlier statement by Figueroa that he did not
know the names of any of his attackers and due to the prison
records before Stokes showing that Figueroa had a history of
psychiatric treatment since age 6. Under these circumstances,
the disciplinary action taken was not supported by "some
evidence" and, accordingly, plaintiff's motion for summary
judgment against Stokes for denying him due process on this
basis is granted.
4. Adequacy of Stokes' Record of Disposition
In an apparent attempt to counter plaintiff's claim that
Stokes relied solely upon hearsay evidence in making a
determination of guilt, defendants allege their responses to
Plaintiff's Request for Admissions that "Lieutenant Stokes
possessed more information than the written material before
him." Exh. B at 3, Howard Aff. Stokes stated in his affidavit
that he relied upon oral reports by various prison officers.
However, due process requires that plaintiff be provided with
"a written statement by the factfinders as to the evidence
relied on" in making a disciplinary determination. See Wolff v.
McDonnell, 418 U.S. 539, 564, 94 S.Ct. 2963, 2978, 41 L.Ed.2d
935 (1974). On its face, Stokes' record of disposition was
constitutionally inadequate. Accordingly, plaintiff's motion
for summary judgment against Stokes for denying him due process
on this basis is granted.
5. Failure to Serve Defendant Sullivan
Finally, defendants argue that all claims should be
dismissed against Sullivan since he has not been served. The
record reflects that on May 9, 1989 Howard provided a copy of
the amended complaint for service by the U.S. Marshals. No
response was received following service by mail. On July 31,
1989 the Marshals attempted personal service but learned that
Sullivan was no longer employed by the New York State
Department of Corrections. The summons and complaint were
accepted by "Peggy Henry, Head Clerk."
An incarcerated pro se litigant proceeding in forma pauperis
is entitled to rely on service by the U.S. Marshals and
dismissal for failure to serve a defendant in a timely manner
is inappropriate. See Romandette v. Weetabix Co., 807 F.2d 309,
311 (2d Cir. 1986); Williams v. Allen, 616 F. Supp. 653, 656
(E.D.N.Y. 1985) (service permitted 3.5 years after filing of
complaint where incarcerated plaintiff relied on U.S.
Marshals). Pursuant to Rule 6(b) of the Federal Rules of Civil
Procedure and in the interests of justice,*fn11 plaintiff, now
represented by appointed counsel, shall effect proper service
of the second amended complaint upon Sullivan within 30 days
from the date of entry of this opinion and notify the Court in
writing thereof, or plaintiff's claims against Sullivan will be
dismissed sua sponte.*fn12
All counsel are to attend a pretrial conference on Monday,
August 5, 1991 at 9:00 a.m. in courtroom 302.
IT IS SO ORDERED.