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September 25, 1991


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


Plaintiff Jerome Russell ("Russell") brought a pro se action under 42 U.S.C. § 1983 seeking monetary and injunctive relief against defendants Thomas A. Coughlin III ("Coughlin"), Commissioner of Correctional Services for New York State, Donald Selsky ("Selsky"), Director of Special Housing and Inmate Discipline for the New York State Department of Correctional Services ("DOCS"), Charles J. Scully ("Scully"), Superintendent of Green Haven Correctional Facility ("Green Haven"), Joseph A. Demskie ("Demskie"), Deputy Superintendent at Green Haven, Christopher Artuz ("Artuz"), Wilbur Wright ("Wright"), Captain at Green Haven, Michael McGinnis ("McGinnis"), Captain at Green Haven, L. Carey ("Carey"), and Bobbie Jo LaBoy ("LaBoy"), Sergeant at Green Haven alleging that they violated his right to due process of law under the Fifth and Fourteenth Amendments to the Constitution by depriving him of procedural safeguards at his Tier III hearings. Defendants Coughlin, Selsky, Scully, Demskie, Wright, McGinnis, and LaBoy (collectively, "Defendants") now move for summary judgment dismissing the complaint against them. For the reasons set forth below, the Defendants' motion is granted in part and denied in part.

Prior Proceedings

Russell filed his complaint seeking injunctive and monetary relief pursuant to 42 U.S.C. § 1983 against defendants Selsky, Scully, Wright, and LaBoy in this court on March 6, 1990. On July 16, 1990, Russell amended his complaint, adding defendants Coughlin, Demskie, Artuz, McGinnis, and Carey, and increasing the amount of money damages sought. Defendants Selsky, Wright, Scully, LaBoy, Coughlin, Artuz, Demskie, and McGinnis filed answers to the amended complaint.*fn1 Defendants Coughlin, Selsky, Scully, Demskie, Wright, McGinnis, and LaBoy filed this motion for summary judgment on March 18, 1991, to which Russell has not responded.*fn2 On April 2, 1991, Defendants submitted a redacted copy of the transcript of the confidential testimony of LaBoy pursuant to an order of this court. This motion and the supporting documents from both sides were considered fully submitted as of May 3, 1991.

The Facts

On October 29, 1989, Larry Monroe ("Monroe"), an inmate at Green Haven, was assaulted by inmates in the telephone room in the C-cell block. Sergeant LaBoy, who was on duty in C-cell block at the time, was called to investigate the incident. Based on conversations with most of the inmates in C-cell block and three confidential informants, LaBoy determined what had transpired and identified the assailants. One of the confidential informants disclosed the cell locations of the assailants and all three provided the nicknames of the inmates responsible and identified them when shown photographs. Russell was one of the inmates identified, and one of LaBoy's confidential informants reported that he was the initial aggressor.

On October 31, 1989, Sergeant LaBoy prepared and submitted an inmate misbehavior report ("MR") charging Russell with violations of DOCS disciplinary rules 100.10 (assault), 104.11 (violent conduct), and 116.10 (property damage). Captain McGinnis, serving as Review Officer, reviewed the MR to determine the appropriate charges and level of discipline. Russell was provided with a copy of the MR. Captain Wright was assigned to preside as Hearing Officer over Russell's Tier III hearing with respect to the charges ("Hearing I). Hearing I was held on November 15, 1989.

Russell pleaded not guilty to all three charges. He requested that the four other inmates allegedly involved in the assault, Leonard Lott, James Martin, Cornell Fisher, and Kastine Chavez, and the two corrections officers on duty on C-cell block on the night of the incident be called to testify on his behalf. He also requested that the victim, Monroe, and the three confidential informants be called as witnesses.

Captain Wright heard Russell's testimony and the testimony of inmates Lott and Martin. Martin testified that, to his knowledge, Russell had nothing to do with the incident and that they were together watching a movie in the recreation room at the time. Lott testified that he was not in the area of the telephone room when the incident occurred but that, as a general matter, he was unaware of Russell having had any problems with any other inmates and that Russell had not "had a ticket" in three or four years. Wright accepted several letters from other inmates on Russell's behalf. Captain Wright called Monroe, but he refused to testify. Finally, Sergeant LaBoy testified in Russell's presence as to the results of her investigation and the information given to her by the confidential informants. During the hearing, Captain Wright asked her if the confidential informants were reliable. She responded that she had dealt with one of the informants for nine years, one for two years, and the third for one year. She reported that she had found all of them to be reliable.

Captain Wright refused Russell's request to call inmates Fisher and Chavez. He stated for the record that he was refusing Russell's request because "they had nothing substantial." In response to Captain Wright's inquiry as to the expected substance of Fisher's and Chavez's testimony, Russell stated that Fisher would probably testify that he was playing chess and had seen Russell watching television, and that Chavez, who was not an eyewitness, would testify only that he had not heard that Russell was involved in the incident.

Captain Wright also failed to call the two corrections officers to testify. Although there is no explanation for this failure on the record, Defendants' 3(g) statement establishes that he and Russell came to an agreement off the record that their testimony was unnecessary. Russell's submissions make no mention of any agreement to that effect.

Captain Wright found Russell guilty on the assault and violent conduct charges and not guilty on the property damage charge. He sentenced him to 180 days confinement in the Special Housing Unit ("SHU") and loss of various privileges for the same period. He prepared and gave Russell a copy of a written disposition containing a statement of the evidence relied upon and reasons for the disposition.

Russell appealed the disposition to Commissioner Coughlin on the grounds that Captain Wright had failed to conduct an in camera hearing to determine the reliability of the confidential informants, had denied him the right to call the two corrections officers as witnesses, and was not impartial.

The appeal was referred to and granted by defendant Selsky on February 1, 1990 for the reasons asserted by Russell. The record of Hearing I was ordered to be expunged and a new hearing was ordered to be commenced within seven days and completed within fourteen days.

On February 8, 1990, the MR was submitted to defendant Carey, who reviewed the report. A copy of the MR was again delivered to Russell.

Defendant Captain McGinnis was assigned to preside as hearing officer over the rehearing ("Hearing II"), which was originally scheduled to begin on February 10 but was adjourned until February 12 because February 10 and 11, 1990 were Captain McGinnis's regular days off. According to Defendants, Captain McGinnis was unaware that he had reviewed the MR prior to Hearing I.

On February 12 and 14, 1990, Captain McGinnis conducted the rehearing. He explained the reasons for the adjournment, and advised Russell that he did not know why the prior hearing was reversed, that he had not reviewed any of the records concerning the prior hearing, and that he had no opinion on the case.

McGinnis accepted Russell's plea of not guilty. Russell testified that he was watching a video tape on television when the incident occurred in an adjacent room. Russell requested as witnesses inmates Fisher, Chavez, Martin, and Lott, as well as the same two corrections officers he had requested and been refused in Hearing I. Each of the inmates were called. Inmate Fisher testified that he had no knowledge of Russell's involvement in the assault on Monroe. Inmate Martin testified that he was watching television with Russell when the incident occurred and that Russell did not assault Monroe. Inmate Lott was called to testify but McGinnis dismissed him when he refused to answer his questions. Inmate Chavez testified that he was not an eyewitness but had heard that Monroe's injuries were the result of a slip-and-fall type accident.

In addition, Russell submitted documentary evidence consisting of a report of the incident dated October 29, 1989 by a corrections officer on duty, Alan Rara ("Rara"), stating that he observed a fight between four inmates, and a medical report of Monroe in which he stated that he lost consciousness and fell inside the telephone booth. McGinnis took the testimony of Sergeant LaBoy outside of Russell's hearing to protect the confidentiality of the informants. McGinnis questioned LaBoy as to the credibility and reliability of the confidential informants. LaBoy disclosed their names and the substance of their reports of the incident. She testified as to the basis for her belief in their credibility and reliability, such as the number of years and times she had used each, their rates of accuracy, and any possible biases they might have. She testified that none of the informants received anything in return for the information other than getting their "li[ves] put in jeopardy." Captain McGinnis did not interview the confidential informants themselves.

Captain McGinnis informed Russell that LaBoy had testified as to the identities and reliability of the informants. He related LaBoy's allegations and gave Russell the opportunity to refute them.

McGinnis found Russell guilty and sentenced him to 180 days in SHU and loss of 30 days of good time. He prepared a written statement of the disposition and evidence relied upon and gave a copy to Russell.

Russell again appealed, this time on the grounds that McGinnis was biased because he had reviewed the MR leading to Hearing I, that a rehearing was improper since the issues raised in the first appeal were not procedural, that McGinnis improperly denied him the right to call witnesses, and that McGinnis failed to assess independently the credibility of the confidential informants.

On April 24, 1990, Russell's appeal was granted and the disposition reversed on the ground that McGinnis had conducted the review of the MR.

Russell brought this action under 42 U.S.C. § 1983 alleging that Defendants, acting alone and in concert, violated his constitutional rights as follows:

(1) Captains Wright and McGinnis denied him the right to call witnesses at Hearings I and II;

(2) Captains Wright and McGinnis failed to conduct in camera hearings to assess independently the credibility and reliability of the confidential informants;

(3) all of the Defendants failed to commence plaintiff's rehearing within seven days after the disposition ...

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