on the test results in making his determination, there may have been no question that he had complied with the requirements of due process. However, by basing his decision on other factors, including information contained in the Syva letter, Cheers cannot now shield himself from providing fundamental constitutional protections by contending that Peranzo absolves him of all concern for the inmate's due process guarantees.
3. Fair and Impartial Hearing Officer
As with the second objection, this Court construes McCormack's pro se complaint liberally and considers the third objection that defendants violated his due process rights by denying him the right to a fair and impartial hearing officer. See, e.g., McCann v. Coughlin, 698 F.2d 112 (2d Cir. 1983). While plaintiff does not list, under a separate count, Cheers's failure to act impartially, he alleges that "Cheers acted in a manner that was partial and denied plaintiff his due process protections . . ." Complaint and Jury Demand P 10, and that "Cheers acted in a clearly partial manner as to intentionally deprive plaintiff [of] his constitutional due process rights . . . ." Id. PP 23, 33. These general allegations provide a sufficient basis for the Court to review a possible due process violation against a pro se plaintiff.
Although "the degree of impartiality required of prison hearing officials does not rise to the level of that required of judges generally," an inmate cannot be denied a fair chance to prevail at the disciplinary hearing because of arbitrary and biased determinations. Francis v. Coughlin, 891 F.2d 43, 46 (2d Cir. 1989). Drawing all reasonable inferences in favor of the nonmoving party and recognizing that defendants may have "suppressed evidence . . . and never informed [plaintiff] of testimony against him," Id., it is questionable whether the determinations made at the hearing were arbitrary and this Court finds a genuine issue of material fact concerning whether Cheers was an unbiased and impartial hearing officer.
4. Selsky's Affirmance
Counts II, IV and VI of plaintiff's complaint charge Selsky with failing to remedy due process violations upon receipt and review of McCormack's appeal. In the Second Circuit, "personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." Moffitt v. Town of Brookfield, 950 F.2d 880, 886 (2d Cir. 1991) (quoting McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977), cert. denied, 434 U.S. 1087, 55 L. Ed. 2d 792, 98 S. Ct. 1282 (1978)). The circuit has determined that a supervisory official, such as Selsky, may be held to have been personally involved in a constitutional deprivation within the meaning of 42 U.S.C. § 1983 when "after learning of the violation through a report or appeal, [he] may have failed to remedy the wrong." Williams v. Smith, 781 F.2d 319, 323 (2d Cir. 1986). Selsky does not deny that he affirmed Cheers's decision nor does he assert separate defenses to the alleged violations. Inasmuch as the Court cannot yet determine whether the hearing itself was conducted in compliance with due process, it is unable to determine whether Selsky was personally involved in the alleged constitutional deprivations.
B. Qualified Immunity
The Court now examines whether Cheers and Selsky are exempt from liability under the doctrine of qualified immunity. Qualified immunity provides "that government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982); Fox v. Coughlin, 893 F.2d 475, 477 (2d. Cir. 1990).
Moreover, qualified immunity applies "even where the rights were clearly established, if it was objectively reasonable for defendants to believe that their acts did not violate those rights." Benitez v. Wolff, No. 92-2168, 985 F.2d 662, (2d Cir. 1993) (citing Anderson v. Creighton, 483 U.S. 635, 638, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987)). Qualified immunity does not apply however, when the "contours of the right" are "sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. at 640.
The Second Circuit directs courts to consider three factors in determining whether a particular right was clearly established at the time the defendants acted: (1) reasonable specificity of the right in question; (2) support for the existence of the right in question in the decisional law of the Supreme Court and the applicable circuit court; and (3) knowledge by the reasonable defendant official, based on preexisting law, that his or her acts were unlawful. Jermosen v. Smith, 945 F.2d 547, 550 (2d Cir. 1991), cert. denied, 118 L. Ed. 2d 211, 112 S. Ct. 1565 (1992).
This Court finds that in May of 1988, an inmate alleged to have violated prison rules enjoyed clearly established statutory or constitutional rights to call witnesses in his behalf at a disciplinary hearing; to advance notice of the evidence available to the factfinder; and to a fair and impartial hearing officer.
At the time of McCormack's hearing, each of these rights had been defined with reasonable specificity and could be found within Supreme Court and Second Circuit decisional law. The particular right to call witnesses at a disciplinary hearing is subject to refusal for reasons of irrelevance, redundancy or the hazards present in an individual case. See, e.g., Wolff v. McDonnell, 418 U.S. at 566; McCann v. Coughlin, 698 F.2d at 122. Advance notice specifically means that an inmate must be informed of the charges in writing and must be granted at least some brief period of time after the notification to prepare a case. See, e.g., Wolff v. McDonnell, 418 U.S. at 564; Patterson v. Coughlin, 761 F.2d at 890. Finally, the right to a fair and impartial hearing officer, as required under Wolff v. McDonnell, 418 U.S. at 571 and McCann v. Coughlin, 698 F.2d at 122, is codified in N.Y. Comp. Codes R. & Regs. tit. vii § 253.1(b) and entails "a bona fide evaluation of the evidence presented at the hearing, not an arbitrary determination that reduces the hearing to a charade." Kelemen ex rel. Littles v. Coughlin, 489 N.Y.S.2d at 673.
Moreover, defendants, as "reasonably competent public officials" are presumed to have known "the law governing [their] conduct" in these matters. Harlow v. Fitzgerald, 457 U.S. at 819. They "are charged with knowledge of relevant decisional law, especially the decisions of the circuit in which they perform their official duties." Francis v. Coughlin, 891 F.2d at 46. Thus, Cheers cannot be shielded from liability for civil damages in that his conduct may have violated clearly established constitutional rights. Similarly, Selsky cannot be shielded from liability as his "actual or constructive notice of [the] unconstitutional practices" imposes supervisory liability upon him for failing to remedy the violations on appeal. Meriwether v. Coughlin, 879 F.2d 1037, 1048 (2d Cir. 1989). Inasmuch as defendants have not raised any "extraordinary circumstances and . . . [proved] that [they] neither knew nor should have known of the relevant legal standard," the Court also finds that it may not have been objectively reasonable for defendants to believe that their acts did not violate plaintiff's constitutional rights. Harlow v. Fitzgerald, 457 U.S. at 819. In sum, the Court denies defendants' motion for summary judgment based on the doctrine of qualified immunity.
C. Count VII
Count VII of plaintiff's complaint merely states the damages suffered as a result of the due process violations alleged in Counts I through VI, but does not present a claim upon which relief can be granted. A pleading which sets forth a claim for relief must contain a statement of the claim showing that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2). Therefore, Count VII is dismissed without prejudice, with leave to plaintiff to amend his complaint to state a cause of action.
For the foregoing reasons, the Court rejects in part and accepts in part Magistrate Judge Grubin's recommendations. Defendants' motion for summary judgment is denied with respect to Counts I, II, III, and IV, and denied in part and granted in part with respect to Counts V and VI. Count VII is dismissed without prejudice for failure to state a claim on which relief can be granted. The parties are directed to complete discovery by June 1, 1993 and to file a joint pre-trial order or move for summary judgment by July 2, 1993.
It is so ordered.
Dated: New York, New York
April 1, 1993
Robert J. Ward