The opinion of the court was delivered by: DAVID G. LARIMER
Victor Sowell ("Sowell"), a prisoner committed to the New York State Department of Correctional Services ("DOCS"), brings this pro se civil rights action under 42 U.S.C. § 1983 against D. Ryan ("Ryan"), a DOCS officer at the Attica Correctional Facility ("Attica"). Sowell alleges that Ryan violated his constitutional rights by refusing to interview two witnesses and to produce certain documentary evidence at a Tier III disciplinary hearing,
at which Ryan presided as the hearing officer. Sowell now moves and Ryan cross-moves for summary judgment under Rule 56(c), Fed.R.Civ.P.
On July 1, 1988, Corrections Officer K. Kunold ("Kunold") filed an inmate misbehavior report against Victor Sowell, who was then an inmate at the Elmira Correctional Facility ("Elmira"). The report charged Sowell with assault, inciting a riot, and refusing to obey a direct order. Sowell was then placed in the Elmira Special Housing Unit ("SHU"), pending the results of a disciplinary hearing on the charges.
On the following day, Sowell was transferred from Elmira to Attica, where a Tier III disciplinary hearing was scheduled for July 12, 1988. Sowell was confined in the Attica SHU, and assigned an assistant - Corrections Officer R. Mackie ("Mackie") - to help him prepare for the hearing. Four days before the hearing, Sowell met with Mackie and requested that Mackie interview Kunold and Corrections Sergeant Setford ("Setford"), and obtain a copy of the unusual incident report. Mackie interviewed Setford, but he was unable to get a copy of the report or to interview Kunold. Affidavit of D. Ryan. ("Ryan Aff."), Ex. C.
On July 12, a superintendent's hearing was held before Corrections Officer Rupert Fennell ("Fennell"). Before the hearing, Sowell pleaded guilty to the charge of refusing to obey a direct order, but denied the other charges. During the hearing, Fennell received into evidence Sowell's statement, the statement from Setford, and Kunold's written report. Fennell also determined, on the record, that it was unnecessary to interview or obtain a statement from Kunold because his written report was an adequate substitute for his testimony. Based on the evidence, Fennell found Sowell guilty on the remaining two charges and sentenced him to 365 days keeplock in the SHU with loss of all privileges, starting from July 1, 1988.
Sowell immediately appealed the decision to the DOCS Commissioner, Thomas Coughlin, III ("Coughlin"), claiming that he should have been allowed to see Kunold's medical records, that it was improper for Fennell to deny him the right to question Kunold, that Fennell had not asked Setford the questions Sowell had requested, and that the hearing was not commenced within the time required. on August 25, 1988, Donald Selsky ("Selsky"), the Director of the Special Housing and Inmate Disciplinary Program, reversed Fennell's decision for "procedural error" and ordered that a rehearing be commenced within seven days of receipt of his decision.
A rehearing was commenced on September 4, 1988, and defendant Ryan was assigned to be the hearing officer. Before the hearing, Sowell made a request for witnesses and documents. Sowell requested that Setford, Kunold, and an inmate named John Giles ("Giles") be interviewed, and he contends that he requested that Kunold's medical records be produced. However, because Ryan believed that the sole purpose for the rehearing was to receive Kunold's statement into evidence, the only new testimony he allowed into evidence was a pre-hearing statement given by Kunold. The hearing was completed on September 10, 1988. Ryan, relying on Kunold's statement and the entire record from the first hearing, found Sowell guilty and reinstated Fennell's sentence of 365 days keeplock in the SHU.
Sowell appealed again, this time on the grounds that he should have been allowed to re-interview Setford and to question Giles, and that Ryan should have produced Kunold's medical records. Selsky again reversed the decision for "procedural error." This time, however, no rehearing was ordered by Selsky. Instead, plaintiff was released from the SHU on November 21, 1988, and his disciplinary record was expunged.
While Sowell was confined in the SHU, after the second hearing but before Selsky's second decision, he commenced this action for injunctive relief and money damages, claiming that Ryan deprived him of due process by failing to produce all of his requested witnesses and documentary evidence. By a decision dated April 10, 1989, I denied Sowell's request for a preliminary injunction and a temporary restraining order because he had already been released from the SHU. Sowell v. Ryan, No. 88-1082L (W.D.N.Y. April 10, 1989). Consequently, his only remaining claim is one for money damages.
Sowell now moves for summary judgment on the ground that the undisputed facts establish that Ryan deprived him of his right to due process. Ryan cross-moves on the grounds that his actions were lawful, that he is protected from liability by qualified immunity, and that based on Zinermon v. Burch, 494 U.S. 113, 108 L. Ed. 2d 100, 110 S. Ct. 975 (1990) a procedural due process action does not lie under section 1983.