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September 20, 1991


The opinion of the court was delivered by: Telesca, Chief Judge.



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 official capacity.


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 states:

  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 stating that "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 riot.

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 rights.

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 ...

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