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RAMIREZ v. SELSKY

October 14, 1992

SANTIAGO RAMIREZ, Plaintiff,
v.
DONALD SELSKY, JAMES E. SULLIVAN, and MICHAEL McGINNIS, Defendants.



The opinion of the court was delivered by: SHARON E. GRUBIN

REPORT AND RECOMMENDATION TO THE HONORABLE MARY JOHNSON LOWE

 SHARON E. GRUBIN, United States Magistrate Judge:

 In this action brought pursuant to 42 U.S.C. ยง 1983, plaintiff Santiago Ramirez alleges that his rights under the Due Process Clause were violated in connection with a Tier III Superintendent's hearing at the Sing Sing Correctional Facility on February 15, 16 and 19, 1987 at which he was found guilty of possessing a weapon in his cell. *fn1" Pending are defendant Michael McGinnis' motion for summary judgment and plaintiff's motion for partial summary judgment. *fn2" As explained below, I respectfully recommend that your Honor grant defendant's motion and deny plaintiff's.

 BACKGROUND

 At all times pertinent, plaintiff was an inmate at Sing Sing, and defendant, a Captain at Sing Sing, was the hearing officer at plaintiff's hearing. The gravamen of the Complaint is that defendant violated Plaintiff's right to due process of law under the Fourteenth Amendment by failing to allow him to call witnesses. *fn3" On February 10, 1987, "a pointed steel rod approximately eight & one half inches long" was found during a search of plaintiff's cell. On February 11, 1987, plaintiff was served with an Inmate Misbehavior Report charging his with possessing a weapon. The report had been issued by Correction Officer Richards who had found the steel shank in the search ordered by a Sergeant Funn. Ex. A; T1.1. *fn4" Prior to the hearing, plaintiff spoke with an employee assistant who, at plaintiff's request, arranged for two inmates, David Kromhout and Ricardo Cotti, to be called to testify. T1.1-2.

 On the first day of the hearing, plaintiff testified, denying that the weapon was his. Defendant asked plaintiff to what his two witnesses would testify and plaintiff responded that they would be able to say that the weapon found in his cell was not his. He explained that Cotti, a close friend, was also the porter on the gallery and "maybe he saw somebody else go in my cell and put it in there." T1.3. Plaintiff explained that the officers who searched his cell could have planted the steel shank. He opined that they might have done so because of a grievance he filed against a different officer and that perhaps there was a conspiracy among correction officers. Defendant adjourned the hearing to the following day to call the two witnesses. Kromhout testified that from his nearby cell he saw the officers who conducted the search of plaintiff's cell coming and going and saw Officer Richards after the search leaving plaintiff's cell carrying a long skinny object wrapped in a cloth. He did not see any of the officers carrying it into the cell, although one of the officers had been carrying a paper bag when he arrived. Cotti, the porter, testified that earlier that day he saw three inmates, one with a bag in his hand, walking down the gallery in the direction off plaintiff's cell. He did not see anyone throw anything into plaintiff's cell. After this nonprobative testimony, plaintiff requested that Sergeant Funn be called. Defendant did so, and Funn testified in response to plaintiff's questioning that he had been ordered by Captain Thomas Haskell to have plaintiff and three other inmates strip-frisked and their cells searched, that Funn had not received information from any confidential informant, and that Haskell had merely indicated to Funn that the reason for the searches wan that the four allegedly were going to attempt to escape. T1.17-19 At this point, plaintiff stated, "Sgt. Funn played his role in this hearing now we call Capt. Haskell in here." Plaintiff then explained he believed that Haskell's testimony would establish that the confidential informant whose information to Haskell had led to the search had planted the weapon. T1.19-22. Defendant said that he would call Haskell, but warned plaintiff that he could not "continue and go on and on and on and call people" when there was no evidence showing that "someone other than your self put that shank in that cell." He pointed out that plaintiff had called Kromhout and Cotti for that reason, but their testimony turned out essentially irrelevant:

 
What I am saying to you is one witness saying it's possible the inmates put it in, you got another witness saying that possibly officers put it in there, because they also have a brown bag when they walked down the gallery. Neither of which proves to me that there's any substantial evidence pointing to that fact, that someone else put that shank.

 T1.22.

 Plaintiff then requested that Officer Richards also testify, and defendant agreed to the requests, adjourning the hearing until three days later. T1.24.

 Captain Haskell testified that plaintiff's cell was searched because he received "confidential information given to the A-Block Sgt. and the A-Block OIC [Officer in Charge]" that plaintiff may have "contraband items in his cell which may assist him in an escape." T2.1-2. *fn5" Responding to direct questions from plaintiff, Haskell said he did not recall "exactly" how the Sergeant and OIC got the information, but that the informant had been, according to them, "a reliable informant in past instances and based on that information we acted." Establishing that Haskell did not have contact with the informant, plaintiff stated:

 
Well then maybe perhaps the OIC of A-Block or such Sergeant who received all this information from, it is very important that we get to the bottom of it cause I'm being, I was just moved upstairs today. . . .

 T2.2. Plaintiff did not request, however, that the Sergeant or OIC be called to testify. Officer Richards then testified. After verifying his report and identifying a photograph of the weapon he had found, Richards stated that he had found it on top of a cardboard box which was on another box on the floor next to a little stand at the back of plaintiff's cell. Richards also stated that someone outside the cell would not have been able to place the weapon in that position by reaching into the cell. T2.4. Plaintiff stated that he had no questions for Richards, and after a short break defendant commenced the following exchange:

 
MCGINNIS: . . . Captain Haskell has stated that the information came from Sgt. DeZayas, okay
 
RAMIREZ: Yup
 
MCGINNIS: Sgt. DeZayas is not in, he is off today and tomorrow. Today is my last day here okay so in a situation where a confidential informant is used and there is no physical evidence alright, I would make a delay and have this completed upon my return, however, we have physical evidence that was found in your cell, alright. Your basis for your defense is that in fact whoever said and correct me if I'm wrong, whoever told the Sergeant that in your mind is the person who, in fact, put said weapon in your cell, is that correct
 
RAMIREZ: Yes it is
 
MCGINNIS: Okay, the information that the Sergeant received turned up a shank in your cell, alright, so that speaks somewhat of the confidential informant's
 
RAMIREZ: Reliability
 
MCGINNIS: Reliability, now it's your contention that he put it [in] the cell. I don't know if there is any way that you can prove that you can ...

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