273 U.S. 103, 106, 47 S.Ct. 302, 303, 71 L.Ed. 560 (1927)).
Right to Call Witnesses
Russell claims that by denying his requests for certain
witnesses at Hearings I and II respectively, Captains Wright
and McGinnis violated his constitutional rights. With respect
to Captain Wright, Russell has raised a material issue of fact,
making summary judgment in Captain Wright's favor
inappropriate. Because he has failed to raise an issue of fact
with respect to his claim against McGinnis, Defendants' motion
for summary judgment dismissing that claim is granted.
Russell has challenged Captain Wright's denial of his request
to call as witnesses the two corrections officers on duty in
C-cell block on the evening in question. No explanation for
Captain Wright's refusal appears on the record of the hearing.
According to Captain Wright, however, he and Russell came to an
agreement off the record that the testimony of the officers was
unnecessary. Russell makes no reference to this unrecorded
agreement and, in fact, denied having any knowledge as to why
these witnesses were not called.*fn3 See Transcript of Hearing
II at 6.
Due process requires that an inmate facing disciplinary
proceedings be given an opportunity to call witnesses and
present documentary evidence in his defense. Wolff v.
McDonnell, 418 U.S. 539, 566, 94 S.Ct. 2963, 2979, 41 L.Ed.2d
935 (1974). This is not an unbounded right: prison officials
may refuse to call witnesses if doing so would be "unduly
hazardous to institutional safety or correctional goals," or if
it would be irrelevant, unnecessary, or extend the hearing
beyond reasonable limits. Id.
While a reviewing court must accord due deference to the
decision of the administrator to exclude a witness, see Freeman
v. Rideout, 808 F.2d 949, 954 (2d Cir. 1986), reh. denied,
826 F.2d 194 (2d Cir. 1987), cert. denied, 485 U.S. 982, 108 S.Ct.
1273, 99 L.Ed.2d 484 (1988), prison officials must explain
their denial of a request for witnesses, consistent with Wolff,
either as part of the written record of the disciplinary
proceeding, or later when the hearing is challenged. Ponte v.
Real, 471 U.S. 491, 497, 105 S.Ct. 2192, 2196, 85 L.Ed.2d 553
(1985); Redding v. Fairman, 717 F.2d 1105, 1114 (7th Cir.
1983), cert. denied, 465 U.S. 1025, 104 S.Ct. 1282, 79 L.Ed.2d
No explanation for Captain Wright's decision to exclude the
corrections officers as witnesses appears on the written record
of the hearing. It is not apparent, therefore, how the
testimony of these witnesses would have been "unduly hazardous
to institutional safety or correctional goals," unnecessary,
irrelevant, or beyond the reasonable scope of the hearing. It
is impossible to determine whether Captain Wright exercised his
broad discretion arbitrarily or whether he had a logical reason
for his decision. See Redding v. Fairman, 717 F.2d at 1114.
Because a material issue of fact exists, see Gittens v.
Sullivan, 720 F. Supp. 40, 43 (S.D.N.Y. 1989) (plaintiff held to
have stated a claim under § 1983 where no explanation provided
for failure to call witnesses) the motion for summary judgment
dismissing this claim is denied.
In contrast, Captain McGinnis's refusal to allow inmate Lott
to testify was sound under Wolff and Ponte. Lott's refusal to
answer any questions posed by Captain McGinnis made it
impossible to adduce any testimony from him within the
reasonable limits of the hearing. Moreover, Captain McGinnis
documented and provided plaintiff with a written explanation
for his refusal to take Lott's testimony. Summary judgment on
Russell's claim against Captain McGinnis for denying him
witnesses therefore is granted.
Failure to Conduct In Camera Hearings to Assess Credibility of
Russell alleges that Captains Wright and McGinnis also
violated his constitutional
rights by failing to conduct in camera hearings to determine
the credibility of LaBoy's confidential witnesses. For the
following reasons, the motion for summary judgment dismissing
the claim against Captain Wright is denied. Summary judgment is
granted dismissing the claim against Captain McGinnis.
In accordance with Wolff's admonition that prison
disciplinary hearings should not be conducted in an arbitrary
manner, courts in this circuit generally require the hearing
officer "somehow [to] assess the credibility and reliability of
the confidential informant." See Howard v. Wilkerson,
768 F. Supp. 1002, 1008-1009 (1991); Vasquez v. Coughlin,
726 F. Supp. 466, 470-71 (S.D.N.Y. 1989); Gittens v. Sullivan,
720 F. Supp. 40, 43 (S.D.N.Y. 1989); Wolfe v. Carlson, 583 F. Supp. 977
(S.D.N.Y. 1984). Although the Court of Appeals for the
Second Circuit has yet to enunciate a test for determining
whether a particular assessment passes constitutional muster,
there has been ample treatment of this issue by other circuit
courts of appeal and district courts within this circuit.
In Kyle v. Hanberry, 677 F.2d 1386 (11th Cir. 1982), the
Court of Appeals for the Eleventh Circuit held that:
due process mandates that the [hearing officer]
undertake in good faith to establish the
informant's reliability, at least to its own
satisfaction. There must be some information on
the record from which a tribunal can reasonably
conclude that the [hearing officer] undertook such
an inquiry and, upon such inquiry, concluded that
the informant was reliable.
Id. at 1390. While the court found in camera examination of the
informant by the hearing officer to be one acceptable means of
assessing reliability, it also concluded that other, less
exacting procedures would suffice. For example, the court found
that it would also be satisfactory if the witness proffering
information provided by a confidential informant testified
before the hearing officer as to the reasons for considering
the informant reliable. Id.