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HOWARD v. WILKERSON

July 2, 1991

CLIFFORD HOWARD, PLAINTIFF,
v.
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.

BACKGROUND

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 Aff.*fn1

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 other responsibilities, 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 ...

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