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March 31, 1993


The opinion of the court was delivered by: MARY JOHNSON LOWE


 Before the Court is an objection to a Report and Recommendation from a Magistrate Judge, pursuant to Fed. R. Civ. P. 72, by Plaintiff Santiago Ramirez ("Plaintiff"). Defendant Michael McGinnis ("Defendant") *fn1" moved for summary judgment and Plaintiff cross-moved for partial summary judgment, pursuant to Fed. R. Civ. P. 56. These motions were referred to Magistrate Judge Sharon Grubin who filed a Report and Recommendation ("R & R") on October 15, 1992, in which she advises that Defendant's motion be granted and that Plaintiff's motion be denied. Plaintiff has filed objections to the R & R, and Defendant has responded pursuant to Fed. R. Civ. P. 72. For the reasons set forth below, the Court adopts the R & R as to Plaintiff's motion and declines to adopt the R & R as to Defendant's motion. Both motions are denied.


 The background of this case is fully stated in the R & R. Plaintiff was an inmate at Sing Sing Prison, and Defendant, a captain at Sing Sing, was the hearing officer at a hearing addressing alleged misconduct by Plaintiff. The Plaintiff's complaint alleges that Defendant violated his right to due process of law as guaranteed under the Fourteenth Amendment of the United States Constitution by failing to call certain witnesses requested by Plaintiff at his hearing.

 On February 10, 1987, a pointed steel rod - a home-made prison weapon commonly referred to as a "shank" - was found in Plaintiff's cell. Plaintiff was served with an inmate misbehavior report charging him with possessing a weapon, and a hearing was scheduled. Prior to the hearing, Plaintiff arranged specifically for inmates David Kromhout and Ricardo Cotti to be called to testify.

 At the hearing, Plaintiff testified that the weapon was not his and stated that the witnesses would testify to the same. He explained that Cotti may be able to say that he saw someone place the weapon into his cell. Plaintiff also claimed that perhaps the officers who searched his cell planted the shank because of a grievance he had filed against a different officer, and that perhaps there was a conspiracy amongst the corrections officers.

 Kromhout testified that from his cell he saw officers leaving the Plaintiff's cell with a long, skinny object wrapped in a cloth. He stated that he didn't see any of the officers carry it into the cell, but that one of the officers had been carrying a paper bag. Cotti testified that he had seen three inmates walking toward Plaintiff's cell with a brown object in hand and return without the object, but had not seen anyone throw anything into Plaintiff's cell.

 Plaintiff contends that a pattern was established whereby when a prison official was mentioned at the hearing, that official was called by Defendant. Throughout the hearing, witnesses, including Sergeant Funn, who directed a search of Plaintiff's cell, and Captain Haskell, who ordered that search, were called. Haskell testified that he ordered the search because of confidential information that other prison officials received from a reliable informant (the "Informant"). The prison officials allegedly believed that Plaintiff possessed contraband which would be used to assist in an escape.

 It was revealed in the later testimony of Officer Richards that he found the weapon on top of a box at the back of Plaintiff's cell in a position which no one outside the cell would have been able to reach. Plaintiff alleged that he could establish that it was the Informant who planted the weapon in his cell.

 Plaintiff stated that he wished to call the Informant as a witness, whereupon the Defendant responded that questions proposed by Plaintiff for the Informant were irrelevant. Also, in dispute are allegations that Plaintiff - through the established pattern of calling witnesses - requested that Defendant call Sergeant DeZayas, the prison official who received the information from the informant, to testify. Plaintiff alleges that Defendant improperly denied this request. Following Plaintiff's closing statement, in which he again objected to Defendant's decision not to call the Informant, Defendant found Plaintiff guilty of possessing a contraband weapon and imposed a penalty of sixty days confinement to a special housing unit, loss of telephone and commissary privileges for that same time, and loss of one month of good time.

 On February 23, 1987, Plaintiff appealed Defendant's determination to the Special Housing/Inmate Disciplinary Program Office on the ground of Defendant's refusal to call the Informant as a witness, or to explain his refusal in a written statement. The determination was affirmed on April 17, 1987, and Plaintiff brought an Article 78 proceeding in New York State Supreme Court. On November 30, 1987, after Plaintiff had served his sixty day punishment, the New York Supreme Court annulled the determination. The court found the denials of Plaintiff's requests to have the Informant and DeZayas called as witnesses improper, and reinstated his lost good-time. Ramirez v. Coughlin, et al., Index No. 14161/87 (N.Y. Sup. Ct. Westchester Co., Nov. 30, 1987) (Wood, J.). The decision was not appealed. Plaintiff commenced this action for compensatory and punitive damages pursuant to 42 U.S.C. § 1983. Defendant has moved for summary judgment, and Plaintiff has cross-moved for partial summary judgment.


 I. Standard for Summary ...

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