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GREEN v. BAUVI

September 1, 1992

ANTHONY GREEN, Plaintiff,
v.
PATRICK BAUVI, THOMAS A. BUSHEK, CLARENCE COLWELL, WILLIAM FENTON, TED NIELSEN, RAY SANFORD, AMY SCHNELLBAECHER, and JACQUELINE TREPANIER, Defendants.



The opinion of the court was delivered by: ROBERT P. PATTERSON, JR.

 ROBERT P. PATTERSON, JR., U.S.D.J.

 This is an action for damages brought pursuant to 42 U.S.C. § 1983 ("§ 1983"). Defendants move jointly pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment. Plaintiff cross-moves for partial summary judgment. For the reasons set forth below, Defendants' motion is granted, and Plaintiff's motion is denied.

 BACKGROUND 1

 The events underlying this dispute are described in detail in this Court's prior opinion, familiarity with which is presumed. Green v. Bauvi, 792 F. Supp. 928 (S.D.N.Y. 1992). *fn2"

 Plaintiff Anthony Green is an inmate in the custody of the New York State Department of Correctional Services. At all relevant times, Plaintiff was incarcerated at Green Haven Correctional Facility ("Green Haven") in Stormville, New York. *fn3" The Defendants were at all relevant times employed at Green Haven.

 I. EVENTS OF MARCH 1988

 On March 7, 1988, Defendant Jacqueline Trepanier, a Green Haven Corrections Officer, issued a misbehavior report ("MR-1") charging that on March 6, 1988:

 Inmate Green was standing in the corridor talking to another inmate. When he finished talking, he stepped inside D-block door and handed me these papers and said, "these are the papers I said I would give you." *fn4" He rapidly disappeared down the corridor before I could refuse the papers or say anything at all. This is not the first time I have been approached by this inmate. He past [sic] me, while walking with his company and made gestures with his lips to say, "I love you." I feel inmate Green may be obsessed with me. I did not do anything to warrant this type of behavior from inmate Green.

 Affidavit of Gila Gellman, sworn to on July 7, 1992, ("Gellman Aff."), Exh. B. MR-1 charged Plaintiff with violating three prison disciplinary rules 107.10, 107.11, and 109.10. *fn5" On March 7, 1988, *fn6" Plaintiff was served with a copy of MR-1 and thereafter placed in keeplock confinement. *fn7"

 On March 9, 1988, Plaintiff was transferred to Housing Block A-2, which at that time was used to house inmates in either extended keeplock or in involuntary protective custody ("IPC"). *fn8"

 Prison records for March 12, 1988 refer to Plaintiff as an IPC inmate.

 On March 14, 1988, while Plaintiff was awaiting a hearing on the charges in MR-1, Corrections Officer Patrick Bauvi, authorized by Lieutenant William Fenton, issued a recommendation that Plaintiff be placed in IPC. The IPC recommendation stated:

 From information received it appears that you developed an infatuation for a member of this facility. On one occasion, you had passed C.O. Trepanier in the hallway while you were walking with your company. You made motions with your lips and muttered the words "I LOVE YOU". On March 6, 1988 you approached C.O. Trepanier and gave her some papers. The Administration of this facility strongly believes your apparent infatuation with this Officer could lead to a dangerous situation there for, for the safety of the staff member the administration feels you should be separated from this officer.

 Gellman Aff., Exh. G. Plaintiff was served with the IPC recommendation on March 14, 1988, and Green Haven log books reflect that at 10:40 p.m. that day, he was "put on IPC status per order Capt. McMahon." Gellman Aff., Exh. I.

 On March 15, 1988, Defendant Clarence Colwell was appointed by Superintendent Charles Scully to conduct a "Superintendent's Proceeding" on Plaintiff. The term "Superintendent's Proceeding" is apparently used to refer to Tier III hearings *fn9" on charges in misbehavior reports and to IPC hearings.

 On March 17, 1988, Plaintiff was summoned for a hearing before Lt. Colwell (hereinafter "the March hearing"). At the outset of the hearing, Plaintiff questioned Lt. Colwell about MR-1. Lt. Colwell responded that it is Green Haven policy that where an inmate is accused of making a show of affection toward a female employee, the matter is handled by issuing an IPC recommendation, not a misbehavior report. The transcript of the hearing indicates that Lt. Colwell stated that MR-1 had been "in essence dismissed," and that the hearing was proceeding on the IPC recommendation. Colwell Aff., Exh. C. at 1-2.

 Plaintiff confirmed that he had met with Sgt. Patterson, his employee assistant, and that he was satisfied with the assistance rendered. Lt. Colwell then reviewed with Plaintiff his request for witnesses. Plaintiff identified Trepanier, Officer Kunak, and inmates Pierce and Willingham as his requested witnesses. He also identified Officer Chaire as a "character" witness. Lt. Colwell told Plaintiff that unless Officer Chaire was present at the incident with Trepanier and could contribute information as to what happened, he would not be permitted as a character witness.

 During the hearing, Plaintiff stated that he was not guilty of the charges at issue; that he could not understand how Trepanier could pinpoint him out of all the inmates in his company and say he mouthed the words "I love you"; that he was a Christian and did not "lust women"; and that he did not hand Trepanier the "Basic Masonic Body Signs" papers. Plaintiff also stated that he had been placed in IPC at Auburn Correctional Facility in 1987 because he was "attracted" to three female nurses; that he had been seen recently by the Psychiatric Satellite Unit at Green Haven; and that he had "mental problems." The hearing was adjourned until the next day so that the two inmate witnesses could testify.

 On March 18, 1988, Inmate Willingham testified that he did not see Plaintiff pass any note to Trepanier; that it was possible such a note had been passed; that he did not hear Plaintiff tell Trepanier that he loved her because he was not paying attention; and that he did not even remember seeing Trepanier. Inmate Pierce testified that he had no knowledge of the incident, but that it was possible a note had been passed. Lt. Colwell advised Plaintiff that the two officers he requested were unavailable to testify on March 21, 1988 and confirmed that Plaintiff himself could not appear on March 21, 1988 because he had two medical appointments scheduled for that day. He advised Plaintiff that an extension would be requested permitting the hearing to extend beyond 14 days from March 7, 1988.

 When hearing reconvened on March 22, 1988, Lt. Colwell advised Plaintiff that an extension had been granted which permitted the hearing to continue and conclude on March 22, 1988. Officer Kunak was called to testify, and Plaintiff admitted that he had no questions to ask of him because he was not present during the incident at issue. Plaintiff stated that he called him as a witness because the officer was a "Christian" and knew Plaintiff to be a "Christian." Officer Kunak confirmed that he knew nothing about the incident, and that he had not observed Plaintiff around any female employees.

 Lt. Colwell again stated that MR-1 had not been acted upon, and that the instant hearing was an IPC hearing, not a Tier III hearing. Lt. Colwell wrote "Time factor Dismissed Handled as a IPC Hearing" across Plaintiff's copy of MR-1, dated the form, and signed his name.

 Plaintiff's last requested witness was Trepanier. She testified that Plaintiff gave her papers although she told him that she did not want them; that on an earlier occasion Plaintiff had mouthed "I love you"; and that her conduct with Plaintiff had always been "strictly official business." The hearing was then concluded.

 In his written "IPC Hearing Determination" issued on March 22, 1988, Lt. Colwell determined "that you [Plaintiff] are a threat to the staff of this facility, and that you are to remain in IPC until you receive a clearance from the Mental Hygiene unit, that you are not a threat." Plaintiff appealed Lt. Colwell's determination, and on March 31, 1988, Deputy Superintendent C.R. Winch concluded that there was "no evidence" to hold Plaintiff in IPC and ordered that he be released. Gellman Aff., Exh. N. At the time of his release, Plaintiff had not been evaluated by the Mental Hygiene Unit.

 II. EVENTS OF SEPTEMBER 1988

 On September 15, 1988, Defendant Ted Nielsen issued a misbehavior report ("MR-2"), charging that on September 15, 1988:

 Green grabbed Physical Therapy Assistant Amy Schnellbaecher's hand and said, "I love long fingernails, I'd love to have you rake these up and down my back." Inmate Green had previously made personal remarks about Ms. Schnellbaecher in her presence. To include, how tight her pants are and how much he loves her fingernails.

 Gellman Aff., Exh. O. MR-2 charged Plaintiff with violating prison disciplinary rule 101.10. *fn10"

 On September 16, 1988, Plaintiff received a copy of MR-2 and was placed in keeplock. Plaintiff selected Sgt. Patterson as his employee assistant, and that assistance was completed on September 19, 1988.

 The Tier III hearing on the charges MR-2 (hereinafter "the September hearing") was to commence on September 21, 1988 before Deputy Superintendent Thomas Bushek. When Deputy Bushek met with Plaintiff on that date, however, Plaintiff advised him that his copy of MR-2 was missing some lines. The hearing therefore did not formally commence that day, and no plea was taken.

 After meeting with Plaintiff on September 21, 1988, Deputy Bushek spoke to Deputy Winch who agreed that Plaintiff should be re-served with MR-2 and given employee assistance again. A complete copy of MR-2 was served on Plaintiff on September 21, 1988. Deputy Bushek also obtained an extension of time which permitted the ...


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