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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 Judgment.

 A motion for summary judgment must be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party must initially satisfy a burden of demonstrating the absence of a genuine issue of material fact, which may be discharged by showing an absence of evidence in support of the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The nonmoving party must then, pursuant to Fed. R. Civ. P. 56(e), meet a burden of coming forward with specific facts showing that there is a genuine issue for trial. Id. at 324; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 In deciding this motion, all ambiguities must be resolved and all reasonable inferences drawn in favor of the nonmoving party. Adickes v. S. H. Kress & Co., 398 U.S. 144, 158-59, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970); Eastway Constr. Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir. 1985). But the Court must also determine if evidence is sufficient so that a jury could return a verdict for that nonmoving party. Anderson, 477 U.S. at 249. The Court may grant summary judgment where the nonmovant's evidence is merely colorable or not significantly probative. Id. at 249-50.

 The Court must focus on both the materiality and the genuineness of the factual issues raised. A dispute over unnecessary or irrelevant facts will not preclude summary judgment, but the presence of unresolved factual issues that are genuine - on which a reasonable jury could return a verdict for the nonmoving party - and that are material to the outcome of the litigation, mandates a denial of summary judgment. See Anderson, 477 U.S. at 248; Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11-12 (2d Cir. 1986), cert. denied, 480 U.S. 932, 94 L. Ed. 2d 762, 107 S. Ct. 1570 (1987).

 In sum, if "the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986) (quoting First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 289, 20 L. Ed. 2d 569, 88 S. Ct. 1575 (1968)). These principles will be applied to the Plaintiff's motion for partial summary judgment and the Defendant's motion for summary judgment.

 II. Plaintiff's Motion.

 Plaintiff seeks partial summary judgment based upon the determination in the Article 78 proceeding between these litigants. In that proceeding, the New York court found Defendant's conduct improper. Plaintiff argues that the Article 78 proceeding precludes litigation of issues previously determined. The R & R rejected Plaintiff's position in favor of recent case law which has held to the contrary.

 State court proceedings are given full faith and credit in federal court, 28 U.S.C. § 1738, and may have a preclusive effect in federal court proceedings. Kremer v. Chemical Constr. Corp., 456 U.S. 461, 72 L. Ed. 2d 262, 102 S. Ct. 1883 (1982) (employment discrimination claim). For example, in Allen v. McCurry, 449 U.S. 90, 66 L. Ed. 2d 308, 101 S. Ct. 411 (1980), the doctrine of collateral estoppel, on the issue of suppression of evidence already litigated in a state criminal case, was held to apply to a federal § 1983 action where the parties had a full and fair opportunity to litigate federal claims while in state court. See also Montana v. United States, 440 U.S. 147, 153-54, 59 L. Ed. 2d 210, 99 S. Ct. 970 (1979).

 This Court, however, agrees with the determination of the Magistrate Judge and her reliance on Gutierrez v. Coughlin, 841 F.2d 484 (2d Cir. 1988). In that case, an inmate brought a § 1983 action against prison officials for violating his due process rights. Prior to that action, an Article 78 proceeding was held before a New York State tribunal which found for the inmate. The inmate sought to collaterally estop the officials from relitigating the due process violation issue. The Court of Appeals held that the state judgment would have no preclusive effect in the federal action. Id. at 486. "Damages for civil rights violations may not be recovered in an Article 78 proceeding." Id. (citing Davidson v. Capuano, 792 F.2d 275, 278-79 (2d Cir. 1986)). The defendants in Gutierrez, while before the Article 78 tribunal, therefore "did not have the same incentive to litigate that state court action as they did the federal § 1983 action." Gutierrez, 841 F.2d at 486. See also Fox v. Coughlin, 893 F.2d 475 (2d Cir. 1990), and Zavaro v. Coughlin, 775 F. Supp. 84 (W.D.N.Y. 1991), aff'd, 970 F.2d 1148 (2d Cir. 1992). But see Petrella v. Siegel, 843 F.2d 87 (2d Cir. 1988).

 This Court finds the logic of Gutierrez applicable to the instant action. There was no incentive nor full opportunity on the part of the Defendant to litigate the federal claims during the Article 78 proceeding, and this proceeding will not estop Defendant. No preclusive effect is given to the Article 78 proceeding in this case, an effect on which Plaintiff relies in seeking partial summary judgment. For these reasons, the Court adopts the Magistrate Judge's R & R. Plaintiff's motion for partial summary judgment is denied.

 III. Defendant's Motion.

 Defendant argues that he is absolutely immune from suit because he is a hearing officer performing functions comparable to those of a judge. Defendant further claims that he is entitled to summary judgment on the issue of his alleged failure to call Sergeant DeZayas and the Informant as witnesses at the Plaintiff's disciplinary hearing.

 The Magistrate Judge rejected Defendant's contention as to the defense of absolute immunity based upon his performance of judge-like functions under Butz v. Economou, 438 U.S. 478, 57 L. Ed. 2d 895, 98 S. Ct. 2894 (1978). She cited Zavaro v. Coughlin, 970 F.2d 1148, 1153 n.2 (2d Cir. 1992), for the rule that "prison disciplinary hearing officers are protected only by qualified immunity." Defendant does not object to this recommendation, and the Court summarily adopts it.

 The Court next examines the issue of Defendant's alleged failure to call requested witnesses. The opportunity to call witnesses must be given to an inmate at a disciplinary hearing. Wolff v. McDonnell, 418 U.S. 539, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974). This right exists when not "unduly hazardous to institutional safety or correctional goals," Id. at 566, and can be "necessarily circumscribed by the penological need to provide swift discipline in individual cases." Ponte v. Real, 471 U.S. 491, 495, 85 L. Ed. 2d 553, 105 S. Ct. 2192 (1985). Prison officials have the discretion to keep disciplinary hearings "within reasonable limits and to refuse to call witnesses that may create a risk of reprisal or undermine authority," and thus hearing officers may deny a request to call a witness, "whether it be for irrelevance, lack of necessity or the hazards presented in individual cases." Wolff, 418 U.S. at 566. However, due process requires that reasons "logically related to preventing undue hazards to 'institutional safety or correctional goals'" must be stated for refusing to call witnesses. Ponte, 471 U.S. at 497. The burden of proving the rationality of the refusal lies with the prison officials. Id. at 499.

 This Court agrees with both Defendant and the Magistrate Judge that hearing officers are given a high level of discretion in determining whether to call witnesses. Minimal due process is required at prison disciplinary hearings. See Afrika v. Selsky, 750 F. Supp. 595 (S.D.N.Y. 1990). However, by law, hearing officers must state reasons logically related to the issues of institutional safety or correctional goals upon a refusal to call witnesses. See Ponte, 471 U.S. at 497. The burden of establishing the rationality of the decision not to call witnesses lies with the officer. Id. at 499. See also Fox v. Coughlin, 893 F.2d 475 (2d Cir. 1990); Moore v. Scully, 1993 U.S. Dist. LEXIS 841, No. 90 Civ. 3817 (S.D.N.Y. January 26, 1993) (Lasker, J.). Defendant has not satisfied his burden and given reasons logically related to the issues stressed by the Supreme Court in Ponte.

 The issues in dispute in this case are genuine and material. A jury could reasonably find that Plaintiff sought the testimony of Sergeant DeZayas, and that Defendant's alleged refusal to permit the testimony of DeZayas and the Informant was improper. Defendant has the burden of showing reasons logically related to the furtherance of institutional safety or correctional goals. Ponte, 471 U.S. at 497. Once met, this burden may be difficult for Plaintiff to overcome. Id. at 499. However, satisfaction of this burden by Defendant is required.

 Plaintiff has given specific facts which make his allegations more than merely colorable. He describes a format alleged to have been established between himself and Defendant for determining which witnesses would be called, and he shows that DeZayas is one such witness. Plaintiff also gives reasons for seeking the testimony of DeZayas and the Informant. Whether Defendant's failure to call DeZayas and the Informant as witnesses was proper or improper will be for the finder of fact.

 The Court disagrees with Plaintiff's characterization of the law as requiring merely "that the non-movant come forward with 'some evidence'" to defeat a motion for summary judgment. Plaintiff's Objections to Report and Recommendation, P 5. The burden on the nonmoving party is greater than this. See Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 256 (nonmoving party must set forth "specific facts"). However, the Court finds that Plaintiff has set forth facts showing genuine issues of material fact adequate to make summary judgment inappropriate. The issues are material and necessary to a determination of liability under § 1983. For these reasons, the Court declines to adopt the Magistrate Judge's R & R as to Defendant's summary judgment motion. Defendant's motion for summary judgment is denied.


 For the reasons stated above, the court adopts the Report and Recommendation as to Plaintiff's motion for partial summary judgment, and declines to adopt it as to Defendant's motion for summary judgment. Both the motion for partial summary judgment and the motion for summary judgment are denied.


 Dated: New York, New York

 March 31, 1993

 Mary Johnson Lowe

 United States District Judge

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