United States District Court, Western District of New York
September 20, 1991
FRANK ZAVARO, PLAINTIFF,
THOMAS A. COUGHLIN, III, AND C.R. HOMRIGHOUSE, DEFENDANTS.
The opinion of the court was delivered by: Telesca, Chief Judge.
DECISION AND ORDER
Plaintiff Frank Zavaro, a prisoner currently incarcerated at
a New York State
correctional facility, brought*fn1 this action pursuant to
42 U.S.C. § 1983, alleging that his due process rights were
violated when he was punished pursuant to a disciplinary
hearing in which the prison hearing officer impermissibly
relied on the uncorroborated testimony of confidential
informers. The plaintiff names as defendants Thomas Coughlin,
the Commissioner of New York State Correctional Services, and
C.R. Homrighouse, captain in the New York State Correctional
Services who acted as a hearing officer in plaintiff's
disciplinary hearing, both of whom he sues in their official
and individual capacities.
On the basis of a favorable judgment in a prior state
proceeding, the plaintiff has moved for summary judgment on the
issue of liability. Defendants have cross-moved for summary
judgment. For the reasons stated below, plaintiff's motion is
granted as to defendant Homrighouse in his individual capacity
and denied in all other respects; defendants' motion is granted
as to defendant Coughlin and as to defendant Homrighouse in his
The disciplinary charges arose out of a mess hall riot at
Great Meadows Prison July 31, 1988. Plaintiff admits that he
was present when the riot occurred, but denies any personal
involvement. That same day, plaintiff was written up in an
Inmate Misbehavior Report charging him with a violation of a
prison regulation against "violent conduct or conduct involving
the threat of violence which creates an immediate danger to
life, health, or facility security." The Misbehavior report
On 7/31/88, at approximately 3:42 p.m., a riot
situation erupted in the North Messhall (sic).
This incident included numerous assaults on staff
by participants. The assaults included use of
weapons, throwing of objects (trays, water
pitchers, dishes, etc.) and striking with fists.
Subject inmate was identified as being in the
messhall during this riot. Employees on the scene
verified that all inmates in the messhall were
actively participating in this riot. This
situation necessitated the discharge of chemical
agents to regain control. Upon discharge, several
inmates did flee the area. Those remaining were
placed in a prone position on the floor.
Identification of subject inmate was by
departmental I.D. card and during the chemical
agent decontamination process.
Defendant Homrighouse presided as the hearing officer at
plaintiff's subsequent Tier III disciplinary hearing. Captain
Homrighouse read into the record the signed eye witness
statements of four prison employees*fn2
"all" of the inmates who were present in the hall participated
in the riot. No eye witness report even mentioned the
plaintiff. Captain Homrighouse also referred to reports
indicating that two unnamed confidential informants had stated
that plaintiff had thrown food trays and dishes during the
Homrighouse found*fn3 plaintiff guilty on the disciplinary
charges. His punishment — two years' confinement to a Special
Housing Unit ("SHU"), loss of two years' good time credits, and
six months' loss of packages — was subsequently modified
downward to one year's incarceration in SHU, a loss of one year
of good time credit, and 6 months' loss of packages.
The plaintiff subsequently commenced an Article 78 proceeding
to challenge his punishment. The matter was transferred to the
Appellate Division pursuant to N.Y.Civ.Prac.L. & R. § 7804(g)
(substantial evidence issue). In a Decision and Order dated
April 19, 1990, the Appellate Division
held that plaintiff had been punished on the basis of
the kind of third-party credibility assessment
that we have repeatedly held insufficient to
support a determination (citations omitted) . . .
[a]nd that the other evidence relied on by the
Hearing Officer established nothing more than that
[the plaintiff] was in the mess hall. Accordingly,
there is insufficient support for this
Plaintiff's counsel states that the Court of Appeals has
affirmed this decision "in all respects," in an order to be
reported at 77 N.Y.2d 642, 569 N.Y.S.2d 582, 572 N.E.2d 23.
Plaintiff now moves for partial summary judgment, stating
that the preclusive effect of the judgment in the Article 78
proceeding warrants summary judgment for the plaintiff as to
defendants' liability for the violation of his due process
Defendants cross-move for summary judgment, stating, inter
alia, that the Article 78 judgment has no preclusive effect in
this action, that defendant Coughlin was not personally
involved in the incidents alleged in the complaint, that
neither defendant is properly sued in his official capacity,
and that defendant Homrighouse is entitled to qualified
immunity. The discussion below briefly addresses these issues
in the order in which they dispose of the motions.
A. Personal Involvement
It is well settled law that "[i]n this Circuit personal
involvement of defendants in alleged constitutional
deprivations is a prerequisite to an award of damages under
§ 1983." McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir.
1977), citations omitted, cert. denied, 434 U.S. 1087, 98 S.Ct.
1282, 55 L.Ed.2d 792 (1978). Relatedly, the mere fact that a
defendant is in a high position of authority provides no basis
for liability under § 1983. Johnson v. Glick, 481 F.2d 1028,
1034 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38
L.Ed.2d 324 (1973).
In this case, plaintiff alleges that defendant Coughlin
"ratified, conducted, condoned, sanction[ed, and] participated
in the actions that caused the constitutional violations . . ."
The defendant's uncontroverted affidavit, however, together
with the transcripted record of plaintiff's disciplinary
hearing, establish that defendant Coughlin lacked the requisite
personal involvement in the events of which plaintiff complains
and that he is, therefore, entitled to summary judgment.
See Monell v. Dept. of Social Services, 436 U.S. 658, 98 S.Ct.
2018, 56 L.Ed.2d 611 (1978).
B. Defendants' Official Capacity
Plaintiff sues defendants in both their official and
individual capacities. Following the Supreme Court's decision
in Will v. Michigan Dept. of State Police, 491 U.S. 58, 109
S.Ct. 2304, 2311, 105 L.Ed.2d 45 (1989), holding that neither a
state nor its officials in such capacity are "persons" for
purposes of § 1983 liability, such an action simply may not be
sustained, and each defendant is entitled to summary judgment
insofar as he is sued in his official capacity.
The sole basis for plaintiff's motion for summary judgment is
the preclusive effect of a favorable judgment in his prior
Article 78 proceeding. Federal courts must give to a state
court judgment the same preclusive effect as the courts of that
state would in subsequent proceedings. U.S. Const. art. IV,
§ 1; 28 U.S.C. § 1738; Allen v. McCurry, 449 U.S. 90, 101 S.Ct.
411, 66 L.Ed.2d 308 (1980); Migra v. Warren City Sch. Dist.,
465 U.S. 75, 81, 104 S.Ct. 892, 896, 79 L.Ed.2d 56 (1984). In
Allen the Supreme Court considered whether § 1983 modifies the
operation of 28 U.S.C. § 1738 so that a state court judgment
would receive less than normal preclusive effect in a federal §
1983 action and determined that issues actually litigated
in a state court proceeding are entitled to the same preclusive
effect in a subsequent § 1983 action brought in federal court
as they would enjoy in the courts of the state where the
judgment was rendered. In Migra,
the Court determined that the preclusive effect of a state
court judgment does not differ even as to federal law issues
which a § 1983 litigant could have, but did not, fully and
fairly litigate in the prior state proceeding. Id., 465 U.S. at
85-86, 104 S.Ct. at 898.
Both this Court*fn4 and other courts of this Circuit*fn5
have had occasion to address the issue of the preclusive effect
upon a subsequent § 1983 action of a judgment in an Article 78
proceeding. Several Second Circuit cases suggest that the
preclusive effect of a judgment in an Article 78 proceeding may
be quite limited in a subsequent § 1983 action. In Davidson v.
Capuano, 792 F.2d 275 (2d Cir. 1986), the Court held that since
the New York court which had entertained and granted
plaintiff's Article 78 petition had not had the power to award
the full measure of monetary damages sought in a later § 1983
action, the prior proceeding did not act as a bar to the
subsequent action; see also Giano v. Flood, 803 F.2d 769 (2d
Cir. 1986) and Fay v. South Colonie Cent. Sch. Dist.,
802 F.2d 21 (2d Cir. 1986), cf. Antonsen v. Ward, 943 F.2d 198 (2d Cir.
1991) (Prior Article 78 proceeding bars subsequent claim for
attorney's fees but not subsequent claim for compensatory
damages); see also DeMartino v. N.Y.C. Transit Auth.,
Civ-86-2147, 1989 WL 27469 (E.D.N.Y. March 16, 1989)
(Principles of issue preclusion apply to § 1983 action brought
in federal court following an Article 78 proceeding.)
In this case, however, the preclusive effect of plaintiff's
favorable Article 78 judgment is determined by more fundamental
rules of res judicata: a judgment resulting from a prior
proceeding may only bind a party, or one in privity with such
a party, who had a full and fair opportunity to litigate the
issue or claim in the prior proceeding. See Parklane Hosiery
Co., Inc. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 649-50, 58
L.Ed.2d 552 (1979). Defendant Coughlin was named as a
respondent in plaintiff's Article 78 proceeding only in his
official capacity. Thus, he had no opportunity to raise
defenses which are available to him here, including lack of
personal involvement and qualified immunity. Defendant
Homrighouse was not even sued in that proceeding. Under the
particular circumstances of this case, the Article 78 judgment
has no preclusive effect.
D. Qualified Immunity
The disposition of plaintiff's motion as against Homrighouse
in his official capacity does not determine the motion against
Homrighouse individually. That issue presents a question which
turns on Homrighouse's right to a qualified immunity defense.
A state official may establish a right to qualified immunity
from suit and from liability by showing (i) that it was not
clear at the time of the official acts that the interest
asserted by the plaintiff was protected by federal statute or
by the Constitution, (ii) or that it was not clear at the time
whether an exception permitted such acts, or (iii) that it was
objectively reasonable for the official to believe that his
actions did not violate any such protected right. See Robison
v. Via, 821 F.2d 913, 920-21 (2d Cir. 1987); see also Anderson
v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 3038-40, 97 L.Ed.2d
A prisoner's right to due process in prison discipline
matters was clearly established well before 1988, when
plaintiff's disciplinary hearing occurred. Wolff v. McDonnell,
418 U.S. 539, 94 S.Ct. 2963, 2974, 41 L.Ed.2d 935 (1974). But
the fact that prisoners retain rights under the
Due Process Clause in no way implies that these
rights are not subject to appropriate restrictions
imposed by the nature of the regime to which they
have been lawfully committed. Citations omitted.
Prison disciplinary proceedings are not part of a
criminal prosecution, and the full panoply of
rights due a [criminal] defendant does not apply.
Citation omitted. In sum, there must be a mutual
accommodation between institutional needs and
objectives and the provisions of the Constitution
that are of general application. Id., 418 U.S. at
557-58, 94 S.Ct. at 2975.
See also Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 868-69,
74 L.Ed.2d 675 (1983):
[It is] well settled that only a limited range of
interests fall within this provision. Liberty
interests protected by the Fourteenth Amendment
may arise from two sources — the Due Process
Clause itself and the laws of the States . . . [and
the courts] have consistently refused to recognize
more than the most basic liberty interests in
In the context of prisoner disciplinary hearings, the Supreme
Court has held that "the requirements of due process are
satisfied if some evidence supports the decision of the [prison
administrator.]" Sup't. Mass. Correc. Inst. v. Hill,
472 U.S. 445
, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985). Should the actions
of a prison official fail to meet even this minimum due process
accorded to prisoners in the context of disciplinary
proceedings, qualified immunity may still bar liability for a
due process violation unless the particular "contours of the
right [are] sufficiently clear that a reasonable official would
understand that what he is doing violates that right. . . .
[I]n the light of pre-existing law the unlawfulness must be
apparent." Anderson v. Creighton, 483 U.S. at 639-41, 107 S.Ct.
at 3039; see also Kaminsky v. Rosenblum, 929 F.2d 922
1991) (If a right is so generalized that its application in the
factual context of the case is subject to doubt, the immunity
defense may bar the action.)
The Second Circuit has implicitly acknowledged that a federal
court may look to applicable state law to determine whether a
constitutional right is well established. Williams v. Smith,
781 F.2d 319, 322 (1986); Compare Smith v. Coughlin,
938 F.2d 19 (2d Cir. 1991) (Determining the availability of qualified
immunity on the basis of pre-existing New York law) with Eng v.
Coughlin, 858 F.2d 889, 897 (2d Cir. 1988) (Citing Second
Circuit case law to the effect that a right is only "clearly
established" by prior holdings of federal courts.)
New York courts have firmly established a prisoner's
fundamental right to due process in prison disciplinary
proceedings. Jones v. Smith, 64 N.Y.2d 1003, 1005, 489 N.Y.S.2d
50, 478 N.E.2d 191 (1985) and, by implication, have established
that adjudication in such proceedings which is not based on
substantial evidence constitutes a violation of a prisoner's
right to due process. See Nelson v. Coughlin, 148 A.D.2d 779,
780, 538 N.Y.S.2d 360 (3d Dept. 1989) (Third-party credibility
assessment insufficient as a matter of law to support
disciplinary determination) and cases cited therein; Alvarado
v. LeFevre, 111 A.D.2d 475, 476, 488 N.Y.S.2d 856 (3d Dept.
1985) (Uncorroborated hearsay "is insufficient in the eyes of
the law [and] is no evidence at all,"), citation omitted;
Wynter v. Jones, 135 A.D.2d 1032, 522 N.Y.S.2d 966 (3d Dept.
1987). Thus, the specific conduct alleged by plaintiff as a
violation of his due process rights — reliance upon
uncorroborated hearsay by a hearing officer in a prison
disciplinary hearing — had been determined to be unreasonable
by the New York courts well before 1988, when the complained-of
Upon a review of the undisputed record of plaintiff's
disciplinary hearing and the resulting punishment, I am
compelled to agree with the conclusion of the Appellate
Division in plaintiff's Article 78 proceeding, that Captain
Homrighouse adjudicated plaintiff guilty of violating prison
rules on the basis of patently deficient evidence — on
uncorroborated statements of confidential informants and signed
statements of eye witnesses which contain absolutely no
reference to the plaintiff. While that court characterized the
deficiency in terms of insufficient evidence and made no
statement concerning a due process violation, I find that
Homrighouse's actions unequivocally failed to meet even the
minimum due process standards which the law has set for such
Finally, the defense of qualified immunity is not available
to defendant Homrighouse in this case. The rights which he
violated were clearly established in 1988, see Hill, 472 U.S.
at 455-56, 105 S.Ct. at 2774 and Alvarado, 111 A.D.2d at 476,
488 N.Y.S.2d at 857; no exception to these rights is involved
in this case; and I find, as a matter of law, that defendant
Homrighouse could not reasonably have believed that his actions
did not violate the plaintiff's rights. See Krause v. Bennett,
887 F.2d 362, 368 (1989).
WHEREFORE, plaintiff's motion for summary judgment is granted
insofar as it seeks the imposition of liability upon defendant
Homrighouse in his individual capacity and is denied in all
other respects; defendants' cross-motion for summary judgment
is granted as to defendant Coughlin and the action is dismissed
as to him; it is granted as to defendant Homrighouse in his
official capacity and the claim against Captain Homrighouse in
his official capacity is dismissed; and the parties are
directed to confer with the Court in order to set a hearing to
determine the plaintiff's damages on the remaining claim.
ALL OF THE ABOVE IS SO ORDERED.