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MOYE v. SELSKY

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK


July 2, 1993

KELVIN MOYE, Plaintiff,
v.
DONALD SELSKY and ROLAND COTE, Defendants.

The opinion of the court was delivered by: ROBERT J. WARD

OPINION

 WARD, District Judge.

 Plaintiff Kelvin Moye has moved, pursuant to Rule 56, Fed. R. Civ. P., for partial summary judgment in this action. *fn1" Defendants Donald Selsky and Roland Cote ("defendants") have cross-moved, pursuant to Rule 56, Fed. R. Civ. P., for summary judgment. For the reasons that follow, plaintiff's motion is granted and defendants' motion is granted in part and denied in part.

  BACKGROUND

 At all times relevant to this action, plaintiff was incarcerated in the Sing Sing Correctional Facility ("Sing Sing"), which is operated by the New York State Department of Correctional Services ("DOCS"). On February 23, 1988, an inmate named W. Francisco was stabbed in that facility. The next day, Moye was placed in a punitive segregation cell of the Sing Sing Special Housing Unit ("SHU") to await a superintendent's hearing ("the hearing") which would determine whether he was involved in the stabbing.

 Cote, who is a DOCS hearing officer, conducted the hearing on March 1, March 7 and March 8, 1988. At the conclusion of the hearing, Cote found plaintiff guilty of assaulting Francisco and sentenced plaintiff to a year of confinement in the SHU.

 Selsky is the Director of Special Housing and Inmate Discipline for DOCS. In that capacity, he is the person designated by the Commissioner of DOCS to review inmate appeals of decisions rendered by hearing officers such as Cote. Selsky reviewed and affirmed ("the review") Cote's decision.

 On December 20, 1988, Justice Gerard E. Delaney of the New York State Supreme Court granted plaintiff's petition pursuant to Article 78 of the New York Civil Practice Law and Rules and annulled and vacated defendants' determination. Plaintiff was not released from the SHU until January 12, 1989, twenty-three days after Justice Delaney's decision.

 In total, Moye was held in the SHU for 323 consecutive days in connection with the Francisco stabbing. Defendants do not dispute that, while plaintiff was in the SHU, he was "confined to a solitary cell twenty-three hours a day, seven days a week, without communication by telephone, without access to the commissary, and without packages from outside Sing Sing." Amended Complaint at P 3.

 In his amended complaint, Moye contends that the hearing before Cote and the review by Selsky violated his rights pursuant to 42 U.S.C. § 1983 and the due process clause of the Fourteenth Amendment.

 Events Preceding the Hearing

 On February 26, two days after he was placed in the SHU for his alleged role in the stabbing of Francisco, Moye was served with an "Inmate Misbehavior Report" which indicated that, "based on confidential information received in a continueing [sic] investigation from two reliable sources, you have been positively identified as the person who stabbed inmate W. Francisco . . . on 2/23/88 on T gallery in [Housing Block "B"] at approx. 10:55 A.M." Lessing Aff. Ex. 1.

 On the same day, Moye met with a DOCS employee who was assigned to assist him in preparing for the hearing. He told this individual that he wished to call as witnesses three inmates and a correction officer. Moye expected that these witnesses would provide an alibi by placing him in other locations within the prison at the time of the stabbing. Among these witnesses was an inmate named Dunbar, who was the gallery clerk for galleries "U" and "Z", which comprised a tier of cells in Sing Sing. Plaintiff was housed on gallery "Z" on the day of Francisco's stabbing. Moye expected Dunbar to make a statement *fn2" indicating that they had had a five to ten minute conversation at Dunbar's cell on the "U" gallery at about the time Francisco was stabbed on the "T" gallery. Moye believed that this would provide him with an alibi which would establish his innocence.

 The Hearing and Appeal

 On March 1, 1988, the first day of the hearing, Cote informed Moye that Dunbar had been transferred to another DOCS facility. Plaintiff refused to waive Dunbar as a witness, asserting that Dunbar's statement would help prove his innocence. Cote told Moye that he would explore the possibility of having Dunbar make a statement by telephone, a practice which was permitted under DOCS procedure.

  Other witnesses made statements to Cote on March 7 and 8. *fn3" One of these witnesses, Correction Officer Hicks, who was on duty on gallery "Z" at the time of the assault, was asked whether he saw plaintiff speaking with Dunbar on gallery "U" immediately prior to plaintiff's return to his cell for "lock-in." Hicks stated that lock-in occurred on February 23 between 10:45 and 11:00 a.m. However, he was unable to recall whether he had seen Moye speaking with Dunbar immediately prior to lock-in.

 Moye called inmate Fred Scott, who was housed in the cell next to the one where Moye was housed at the time of the stabbing. Scott indicated that he saw Moye in the prison barber shop up until 10:30 a.m. on the morning of February 23 and that he then saw Moye return to his cell no later than 10:45 a.m.

 Given Hicks's inability to recall whether he had seen Moye and Dunbar speaking immediately prior to lock-in, plaintiff asserted that Dunbar was the only person who could place him at a location other than the scene of the stabbing between 10:30 and 10:45. Nevertheless, Cote did not permit Dunbar to make a statement. Moreover, Cote did not provide Moye with a written statement explaining why Dunbar was not permitted to make a statement.

 The only evidence presented at the hearing linking Moye to the stabbing consisted of statements by two correction officers, who indicated that confidential informants had implicated plaintiff in the assault. Moye was not present when the correction officers made their statements and Cote never interviewed any of the informants.

 At the conclusion of the hearing, Cote informed Moye that the assault on Francisco did not occur at 10:55 a.m., as was stated on the Inmate Misbehavior Report. Instead, according to the prison logbook, the victim was found at 10:55 a.m. and the assault occurred an indeterminate amount of time before then.

 Cote found Moye guilty of assaulting Francisco and sentenced him to a year of punitive segregation in the SHU. Moye filed an administrative appeal with Selsky, asserting that Cote had denied him the right to call Dunbar and citing Wolff v. McDonnell, 418 U.S. 539, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974). On May 12, 1988, Selsky affirmed the hearing disposition.

 As indicated above, defendants' determination was subsequently annulled and vacated by a Justice of the New York State Supreme Court in an Article 78 proceeding. That court found Cote's determination to prohibit Dunbar from making a statement, which was affirmed by Selsky, to be a violation of Moye's due process rights and DOCS's rules and regulations.

 The Instant Motions

 Plaintiff now moves for partial summary judgment with respect to Claims One and Three of the Amended Complaint, *fn4" but not with respect to Claim Two. *fn5" Plaintiff does not move for summary judgment on the issue of damages with respect to these claims. Defendants cross-move for summary judgment on all three of plaintiff's claims.

 DISCUSSION

 A. Standards for Granting Summary Judgment Pursuant to Rule 56

 Summary judgment may be granted when the moving party establishes "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); Rosen v. Thornburgh, 928 F.2d 528, 532 (2d Cir. 1991). If no rational fact-finder could find in the nonmovant's favor, there is no genuine issue of material fact and summary judgment is appropriate. Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 251-52, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). In making this determination, the court should not resolve disputed issues of fact, but rather, while resolving ambiguities and drawing reasonable inferences against the moving party, must assess whether material factual issues remain for the trier of fact. Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990) (quoting Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986), cert. denied, 480 U.S. 932, 94 L. Ed. 2d 762, 107 S. Ct. 1570 (1987)).

 B. Claim One: Defendant Cote's Exclusion of Moye's Witness

 In the context of a prison disciplinary proceeding, an inmate is entitled to call witnesses unless doing so would "be unduly hazardous to institutional safety," would delay swift punishment or would cause the proceeding to exceed "reasonable limits" due to "irrelevance [or] lack of necessity" of the statements such witnesses would provide. Wolff v. McDonnell, 418 U.S. 539, 566, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974); see also Ponte v. Real, 471 U.S. 491, 495, 85 L. Ed. 2d 553, 105 S. Ct. 2192 (1985) ("the inmate's right to present witnesses is necessarily circumscribed by the penological need to provide swift discipline in individual cases"); Scott v. Kelly, 962 F.2d 145, 147 (2d Cir. 1992). A court must employ a balancing test, weighing the inmate's liberty interest "against the needs of the prison, and some amount of flexibility and accommodation is required." Wolff v. McDonnell, 418 U.S. at 566; see also Freeman v. Rideout, 808 F.2d 949, 954 (2d Cir. 1986) ("On review, it is the responsibility of the court to balance the concern to safeguard the rights of individual inmates with the legitimate needs and aims of the penal institution"), cert. denied, 485 U.S. 982, 99 L. Ed. 2d 484, 108 S. Ct. 1273 (1988).

 It is true, as defendants assert, that the outcome of a prison disciplinary hearing passes constitutional muster so long as there was "some evidence in the record," "a modicum of evidence" or "any evidence in the record" upon which the finder of fact relied. Superintendent v. Hill, 472 U.S. 445, 454-56, 86 L. Ed. 2d 356, 105 S. Ct. 2768 (1985). But the evidentiary standard established by the Hill court concerns the weight of evidence necessary to impose further punishment on a prisoner, and does not apply to a procedural due process challenge, such as is presently before the Court, which alleges the unconstitutional exclusion of witnesses from an evidentiary hearing. See Freeman v. Rideout, 808 F.2d at 954-55 (first applying procedural due process test enunciated in Wolff and Ponte and then determining whether there is "some evidence" which supports decision of prison disciplinary board); Moore v. Scully, No. 90 Civ. 3817 (MEL), 1993 U.S. Dist. LEXIS 841, 1993 WL 22129, at *3 (S.D.N.Y. Jan. 26, 1993).

 The standard to be applied in a procedural due process challenge was articulated in Ponte v. Real, 471 U.S. 491, 85 L. Ed. 2d 553, 105 S. Ct. 2192 (1985). In that case, the Court was presented with the question of whether prison officials are required, under federal due process principles, to explain why witnesses were not allowed to testify at a prison disciplinary hearing. The Court held that prison officials may be required to proffer such an explanation, but they may do so either at the time of the hearing or in a later court proceeding in which the exclusion is challenged. The Court then stated, "so long as the reasons are logically related to preventing undue hazards to 'institutional safety or correctional goals,' the explanation should meet the due process requirements as outlined in Wolff." Id. at 497 (emphasis added) (quoting Wolff v. McDonnell, 418 U.S. at 566), quoted in Fox v. Coughlin, 893 F.2d 475, 478 (2d Cir. 1990). The Ponte court explicitly rejected the proposed standard put forth by the prison officials in that case, which would have, "placed the burden of proof on the inmate to show why the action of the prison officials in refusing to call witnesses was arbitrary or capricious." Ponte v. Real, 471 U.S. at 499. Rather, the burden is on the prison official to prove the rationality of the decision to exclude witnesses. Kingsley v. Bureau of Prisons, 937 F.2d 26, 30-31 (2d Cir. 1991); Fox v. Coughlin, 893 F.2d at 478; Joyner v. Coughlin, No. 92 Civ. 7613 (RPP), 1993 U.S. Dist. LEXIS 3744, 1993 WL 97224, at *3 (S.D.N.Y. Mar. 26, 1993); Moore v. Scully, 1993 U.S. Dist. LEXIS 841, 1993 WL 22129, at *1.

 There is no evidence in the record that Cote gave reasons at the hearing for excluding Dunbar. Furthermore, the papers submitted by defendants in connection with the instant motions do not demonstrate a rational basis for Cote's decision. Defendants do not contend that Dunbar's presence at the hearing would have compromised institutional safety. Nor do defendants assert that Dunbar's statement would have been irrelevant. Finally, defendants do not argue that Dunbar, who had been transferred to another facility, could not have given a statement over the telephone. Rather, the correctional goal relied upon by defendants is contained in the "lack of necessity" prong of the Wolff test. In particular, defendants assert that any statement by Dunbar would not have established Moye's innocence and would have been cumulative to Scott's statement.

 The Court finds that defendants have not proven a logical relationship between Cote's decision to exclude bar and a correctional goal. *fn6" In reaching its conclusion, this Court is mindful of the Supreme Court's admonition that federal tribunals "should not be too ready to exercise oversight and put aside the judgment of prison administrators." Wolff v. McDonnell, 418 U.S. at 566.

 Defendants note that, "Dunbar's statement, if believed, would not have necessarily established plaintiff's innocence since plaintiff could have spoken to . . . Dunbar and still have assaulted the inmate. Unfortunately, it does not take more than a moment or two to go down a flight of stairs, stab someone and go back up the flight of stairs." Letter from Barbara B. Butler, Asst. Att'y Gen., to Judge Robert J. Ward (May 6, 1993) at 2.

 Nevertheless, if Dunbar had credibly confirmed Moye's version of events, he would have provided corroboration of Moye's whereabouts during the 10:30 to 10:45 period of time not accounted for by Scott's statement. Dunbar's statement would not have been cumulative and, although not definitively proving Moye's lack of involvement in the attack on Francisco, would have been highly probative.

 While it is certainly true that any statement by Dunbar would not have established an airtight alibi, such a statement would have provided compelling evidence of Moye's innocence, particularly if Dunbar indicated that he and Moye spoke for a significant part of the fifteen minute time period not accounted for by Scott's statement.

 Accordingly, the Court finds that Dunbar's statement was necessary to Moye's defense and that Cote's ruling was not logically related to any correctional goals. Given the significant deprivation facing Moye (i.e. one year in the SHU), and the lack of a convincing rationale for Cote's decision, the balance in this case tilts heavily in plaintiff's favor. Therefore, Cote's refusal to obtain a statement from Dunbar deprived plaintiff of due process.

 C. Claim Two: Defendant Cote's Assessment of Confidential Informants

 Neither the Second Circuit nor the Supreme Court has established a rule concerning how a prison hearing officer is to assess the reliability of information gleaned from confidential sources. Nevertheless, other circuit courts, as well as district courts in the Southern District of New York, have adopted rules requiring the hearing officer to make an independent assessment of confidential witnesses' credibility and/or reliability. See, e.g., Taylor v. Wallace, 931 F.2d 698, 701-02 (10th Cir. 1991); Hensley v. Wilson, 850 F.2d 269, 276-77 (6th Cir. 1988); Russell v. Coughlin, 774 F. Supp. 189, 196-97 (S.D.N.Y. 1991), rev'd sub nom. on other grounds Russell v. Scully, No. 92-2057, 1993 U.S. App. LEXIS 13253, 1993 WL 188677 (2d Cir. June 4, 1993); Vasquez v. Coughlin, 726 F. Supp. 466, 470-71 (S.D.N.Y. 1989). The Court agrees with the persuasive reasoning in these cases and adopts this rule.

 The parties dispute whether Cote made an independent assessment of the statements given by the confidential informants to the corrections officers. Inasmuch as the record is devoid of any clear indication as to whether Cote independently assessed the credibility and reliability of these confidential witnesses, the Court is presented with a disputed issue of material fact. For this reason, summary judgment on the merits is inappropriate with respect to Claim Two.

 D. Claim Three: Absolute Quasi-Judicial Immunity for Selsky

 Defendants assert that Selsky is entitled to absolute immunity inasmuch as he served a quasi-judicial function in reviewing and affirming Cote's decision. The Court will review the standards applicable to this assertion and then apply them to the instant matter.

 1. Standards for Granting Absolute Immunity

 It is well established that judges are immune from liability for their judicial acts. Cleavinger v. Saxner, 474 U.S. 193, 199-200, 88 L. Ed. 2d 507, 106 S. Ct. 496 (1985). Absolute immunity applies, "'however erroneous the act may have been, and however injurious in its consequences it may have proved to the plaintiff.'" Id. (quoting Bradley v. Fisher, 80 U.S. 335, 13 Wall. 335, 347, 20 L. Ed. 646 (1872)).

 Absolute immunity for judges engaged in judicial activity dates back to centuries-old English common law and has been adopted by American courts. Butz v. Economou, 438 U.S. 478, 508, 57 L. Ed. 2d 895, 98 S. Ct. 2894 (1978). This form of immunity was established to protect the independence of the judiciary, by allowing judges to perform their functions without the threat of harassment or intimidation. In particular, "judges were often called to decide 'controversies involving not merely great pecuniary interests, but the liberty and character of the parties, and consequently exciting the deepest feelings." Id. at 509 (quoting Bradley v. Fisher, 13 Wall. at 348). If frustrated litigants could maintain a civil suit against a judge, "judges would lose 'that independence without which no judiciary can either be respectable or useful.'" Id. (quoting Bradley v. Fisher, 13 Wall. at 347).

 There is, however, a fundamental tension between the importance of protecting judicial independence and the principle that "all the officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it." United States v. Lee, 106 U.S. 196, 220, 27 L. Ed. 171, 1 S. Ct. 240 (1882) (quoted in Butz v. Economou, 438 U.S. at 506). It is this tension, as well as a recognition of "the salutary effects that the threat of liability can have," Forrester v. White, 484 U.S. 219, 223, 98 L. Ed. 2d 555, 108 S. Ct. 538 (1988), that has caused the Supreme Court to be "cautious in recognizing claims that government officials should be free of the obligation to answer for their acts in court." Id. at 223-24.

 While absolute immunity has been extended to members of the executive branch who serve a judicial function, qualified immunity, rather than absolute immunity, remains the norm for executive branch officers. Buckley v. Fitzsimmons, 113 S. Ct. 2606, 125 L. Ed. 2d 209, 1993 U.S. LEXIS 4400, (U.S. 1993). Indeed, courts "'have been quite sparing in [their] recognition of absolute immunity, and have refused to extend it any further than its justification would warrant.'" Antoine v. Byers & Anderson, Inc., 113 S. Ct. 2167 n.4, 124 L. Ed. 2d 391, (U.S. 1993) (quoting Burns v. Reed, 114 L. Ed. 2d 547, 111 S. Ct. 1934, 1939 (1991)).

 A government official who seeks absolute immunity bears the burden of showing that overriding public policy considerations justify a deviation from this norm. Forrester v. White, 484 U.S. at 224; Cleavinger v. Saxner, 474 U.S. at 201; Butz v. Economou, 438 U.S. at 506.

 In deciding whether a government official is entitled to absolute immunity from a § 1983 suit, a court is to follow a functional approach, which involves evaluating the nature of the act performed by the official in connection with the alleged constitutional or statutory violation. If the official's action was judicial in nature, then absolute immunity applies. The official's rank, title or place within the government is not the determining factor. *fn7" Forrester v. White, 484 U.S. at 227; Cleavinger v. Saxner, 474 U.S. at 201; Butz v. Economou, 438 U.S. at 511.

 When applying the functional test to ascertain whether the government official is acting in an adjudicatory role and is therefore entitled to absolute immunity, the court should consider the following six factors:

 

(a) the need to assure that the individual can perform his functions without harassment or intimidation; (b) the presence of safeguards that reduce the need for private damages actions as a means of controlling unconstitutional conduct; (c) insulation from political influence; (d) the importance of precedent; (e) the adversary nature of the process; and (f) the correctability of error on appeal.

 Cleavinger v. Saxner, 474 U.S. at 202 (citing Butz v. Economou, 438 U.S. at 512).

 Federal hearing officers and administrative law judges are afforded absolute immunity. Butz v. Economou, 438 U.S. at 513-14. The Butz court found that the role of the modern federal hearing examiner or administrative law judge was "functionally comparable" to that of a trial judge:

 

adjudication within a federal administrative agency shares enough of the characteristics of the judicial process that those who participate in such adjudication should also be immune from suit for damages. . . . Federal administrative law requires that agency adjudication contain many of the same safeguards as are available in the judicial process. The proceedings are adversary in nature. They are conducted before a trier of fact insulated from political influence. A party is entitled to present his case by oral or documentary evidence, and the transcript of testimony and exhibits together with the pleadings constitute the exclusive record for decision. The parties are entitled to know the findings and conclusions on all of the issues of fact, law, or discretion presented on the record.

 Id. at 512-13 (citations to Administrative Procedure Act omitted).

 In addition, the Butz court explained that:

 

the process of agency adjudication is currently structured so as to assure that the hearing examiner exercises his independent judgment on the evidence before him, free from pressures by the parties or other individuals within the agency. Prior to the Administrative Procedure Act, there was considerable concern that persons hearing administrative cases at the trial level could not exercise independent judgment because they were required to perform prosecutorial and investigative functions as well as their judicial work and because they were often subordinate to executive officials within the agency.. . . The Administrative Procedure Act contains a number of provisions designed to guarantee the independence of hearing examiners. They may not perform duties inconsistent with their duties as hearing examiners. When conducting a hearing under § 5 of the APA, a hearing examiner is not responsible to, or subject to the supervision or direction of, employees or agents engaged in the performance of investigative or prosecution functions for the agency. Nor may a hearing officer consult any person or party, including other agency officials, concerning a fact at issue in the hearing, unless on notice and opportunity for all parties to participate. . . . They may be removed only for good cause established and determined by the Civil Service Commission after a hearing on the record. Their pay is also controlled by the Civil Service Commission.

 Id. at 513-14 (emphasis added; citations omitted). On the basis of these factors, the Butz court held that persons subject to the provisions of the APA are entitled to absolute immunity.

 In contrast, the Supreme Court has held that a prison disciplinary board is not entitled to absolute immunity:

 

We do not perceive the discipline committee's function as a "classic" adjudicatory one . . . . Surely, the members of the committee, unlike a federal or state judge, are not "independent"; to say that they are is to ignore reality. They are not professional hearing officers, as are administrative law judges. They are, instead, prison officials, albeit no longer of the rank and file, temporarily diverted from their usual duties. They are employees of the Bureau of Prisons and they are the direct subordinates of the warden who reviews their decision. They work with the fellow employee who lodges the charge against the inmate upon whom they sit in judgment. The credibility determination they make often is one between a coworker and an inmate. They thus are under obvious pressure to' resolve a disciplinary dispute in favor of the institution and their fellow employee. It is the old situational problem of the relationship between the keeper and the kept, a relationship that hardly is conducive to a truly adjudicatory performance.

 Cleavinger v. Saxner, 474 U.S. at 203-04 (citations omitted); see also Zavaro v. Coughlin, 970 F.2d 1148, 1153 n.2 (2d Cir. 1992) ("absolute immunity does not extend to officers presiding at prison disciplinary hearings, in the absence of the procedural safeguards identified by the Supreme Court in Butz").

 Despite the procedural safeguards present in the disciplinary proceeding at issue in Cleavinger,8 the Supreme Court found that these were not sufficient to place the disciplinary board into a judicial role "of the kind and depth" required for absolute immunity. Cleavinger v. Saxner, 474 U.S. at 206. Among the missing factors, the Cleavinger court noted that the prisoner was afforded neither a lawyer nor an independent, nonstaff representative; had no right to compel the attendance of witnesses or to cross-examine those called as witnesses; had no right to discovery; and did not receive a verbatim transcript. Furthermore, there was no cognizable burden of proof and hearsay testimony was permitted. Id.

 2. Application of Standards to Selsky

 The Court now considers defendants' argument in light of the six factor analysis identified in Cleavinger. As an initial matter, there can be little doubt, in the prison context, that an appellate hearing officer must be permitted to perform his functions without harassment or intimidation. This Court and others have seen numerous "harassment" lawsuits filed by inmates. See Cleavinger v. Saxner, 474 U.S. at 203 ("We also acknowledge that many inmates do not refrain from harassment and intimidation. The number of nonmeritorious prisoners' cases that come to this Court's notice is evidence of this.")

 Nevertheless, this Court has before it no evidence that defendant Selsky has been harassed or intimidated by lawsuits brought against him in his capacity as the DOCS Director of Inmate Discipline. Furthermore, the existence of qualified immunity and "firm application of the Federal Rules of Civil Procedure will ensure that federal officials are not harassed by frivolous lawsuits." Butz v. Economou, 438 U.S. at 507-08, quoted in Cleavinger v. Saxner, 474 U.S. at 206-07. The same may be said of state officials sued in federal court under 42 U.S.C. § 1983.

 The second factor to be considered is the presence of procedural safeguards that reduce the need for § 1983-type actions as a means of controlling unconstitutional conduct. As discussed supra, the Cleavinger court found that, despite the existence of certain procedural protections, such as prior notice of the hearing, representation by a prison staff member, the limited right to present evidence, the right to be present at the hearing, the requirement of a detailed record and the availability of further administrative review, there were still not enough procedural safeguards to justify extension of absolute immunity to a prison disciplinary board.

 The Court focussed on the fact that the prisoner was afforded neither a lawyer nor an independent, nonstaff representative; had no right to compel the attendance of witnesses or to cross-examine those called as witnesses; had no right to discovery; and did not receive a verbatim transcript. Furthermore, there was no cognizable burden of proof and hearsay testimony was permitted. Cleavinger v. Saxner, 474 U.S. at 206.

 With one exception, *fn9" the procedural framework for an inmate appearing before the DOCS disciplinary board suffers from the same shortcomings as did the procedural framework found in Cleavinger. For example, such hearings rely heavily on hearsay, including unverifiable information from prison guards and informants. This lack of evidentiary rigor is in stark contrast to the strict evidentiary standards required in judicial proceedings. Cf. Julio A. Thompson, Note, A Board Does Not a Bench Make: Denying Quasi-Judicial Immunity to Parole Board Members in Section 1983 Damages Actions, 87 Mich. L. Rev. 241, 250-51 (1988) (arguing that parole board members are not entitled to absolute quasi-judicial immunity because, inter alia, parole board proceedings lack the evidentiary rigor of judicial proceedings).

 These shortcomings were not cured by the administrative appeal to Selsky, who relied upon the same evidence (and, in the case of Dunbar, lack of evidence) considered by Cote. Thus, while the administrative appeal provided an extra level of review, Moye was not afforded any additional procedural safeguards in terms of the introduction of evidence or the assistance of outside counsel.

 In light of this fact, it would be inequitable and inconsistent to afford the appellate officer absolute immunity while granting the hearing officer the more limited protection of qualified immunity. While their rank within DOCS is different, their function is, for purposes of this analysis, is similar. See Buckley v. Fitzsimmons, 61 U.S.L.W. 4713 at 4722 (Kennedy, J., concurring in part and dissenting in part) ("one of the unquestioned goals of our § 1983 immunity jurisprudence [is] ensuring parity in treatment among state actors engaged in identical functions"); see also id. at 4717 (when prosecutor and police officer perform similar functions, it is "'neither appropriate nor justifiable that, for the same act, immunity should protect the one and not the other.'") (quoting Hampton v. Chicago, 484 F.2d 602, 608 (7th Cir. 1973), cert. denied, 415 U.S. 917, 39 L. Ed. 2d 471, 94 S. Ct. 1413, 94 S. Ct. 1414, (1974)); Burns v. Reed, 111 S. Ct. at 1944 ("it is incongruous to allow prosecutors to be absolutely immune from liability for giving advice to the police, but to allow police officers only qualified immunity for following the advice."); Forrester v. White, 484 U.S. at 229 ("a judge who hires or fires a probation officer cannot meaningfully be distinguished from a district attorney who hires and fires assistant district attorneys").

 The third Cleavinger factor concerns insulation from external influence. Selsky's assertion of insulation notwithstanding, the "relationship between the keeper and the kept," Cleavinger v. Saxner, 474 U.S. at 204, is present in the DOCS appellate procedure. As Chief Judge Winter of the Fourth Circuit wrote in dissent in a pre-Cleavinger case,

 

The majority finds the safeguards here in a prisoner's right to appeal an adverse disciplinary action to . . . an officer of the central state administration of the prison system. To me this "safeguard" is more illusory than real. . . . The state department administering the prison system [cannot] be expected to function as an impartial arbiter of conflicts between the institutional interests of the prisons and the rights of inmates. Without impugning the competence or integrity of prison administrators, I am unable to view this system of review as a reliable check on the discretion of prison disciplinary committees . . . .

 Ward v. Johnson, 690 F.2d 1098, 1115 (4th Cir. 1982) (en banc) (Winter, C.J., dissenting).

 Selsky lacks independence in two ways. First, unlike the hearing officers in Butz, who were subject to removal only by a neutral body, *fn10" Selsky is subordinate to, and subject to removal by, his superiors at DOCS. Cf. Butz v. Economou, 438 U.S. at 513-14 ("Prior to the Administrative Procedure Act, there was considerable concern that persons hearing administrative cases at the trial level could not exercise independent judgment because they were required to perform prosecutorial and investigative functions as well as their judicial work, and because they were often subordinate to executive officials within the agency") (citations omitted; emphasis added). While Selsky is not a subordinate of any facility superintendent, as were the defendants in Cleavinger, he is a direct subordinate of the DOCS Deputy Commissioner for Correctional Facilities and, ultimately, of course, the DOCS Commissioner.

 Second, Selsky provides general advice to facility staff on how properly to conduct a disciplinary hearing, and also answers specific inquiries that arise during the course of a hearing. *fn11" This raises the possibility that Selsky might be asked on appeal to reverse a ruling made at a disciplinary hearing by facility staff who solicited and relied on Selsky's advice in the matter. In essence, Selsky would be asked to reverse himself. This would not be an independent determination.

 Defendants have filed an affidavit of Thomas A. Coughlin III, Commissioner of DOCS ("the Commissioner"), in which the Commissioner indicates that Selsky is permitted to exercise his independent judgment, free from institutional pressures. *fn12" Although this court has not been presented with any evidence that Selsky has been directly pressured by the commissioner or any other superior to decide appeals in a certain way, the court is not prepared to say that other, more subtle forms of pressure might not influence Selsky's decision-making processes. The simple fact that Selsky serves at the pleasure of superiors within DOCS creates a dependence upon the goodwill of these officials, who may, on occasion, place institutional interests above the rights of inmates.

 Accordingly, the fact that Selsky's "work performance is not reviewable by anyone whose decisions or actions would be before him on an appeal," Coughlin Aff. P 10, offers only a partial guarantee of independence. Selsky may be asked to rule on the application of institution-wide practices or procedures in which his superiors have a direct interest. Thus, despite the existence of certain institutional safeguards, Selsky still serves at the pleasure of the "keepers" and his judgment cannot be truly independent.

 As for the importance of precedent, the Commissioner has indicated that Selsky considers the facts from the disciplinary hearing "in relation to regulations, administrative precedent, and relevant case law." Coughlin Aff. P 5. This assertion is undisputed by plaintiff. Therefore, in this regard, Selsky does serve a judicial function.

 As noted above, neither the disciplinary hearing nor the appeal can be characterized as fully adversarial in nature. Inmates may not be represented by counsel and lack many opportunities to cross-examine and challenge witnesses and other evidence presented by DOCS officers and confidential informants.

 As for Cleavinger's sixth factor -- the correctability of error on appeal -- it has been noted that, "injunctive or declaratory relief is useless to a person who has already been injured. 'For [such persons] it is damages or nothing.'" Butz v. Economou, 438 U.S. at 504-05 (quoting Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 410, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971)). Moye's 323 days in the SHU, in violation of his due process rights, were an injury which could not be cured by injunctive or declaratory relief and so it is "damages or nothing."

 The Court is aware that two other federal judges in New York State have found that Selsky is entitled to absolute immunity. See Parkinson v. Employee Assistant, No. 91 Civ. 7401 (KMW), 1993 U.S. Dist. LEXIS 4604, 1993 WL 118451 (S.D.N.Y. Apr. 12, 1993); Pacheco v. Kihl, No. CIV-90-549T (W.D.N.Y. Dec. 17, 1991). Nevertheless, upon a careful application of the six Cleavinger factors to the DOCS inmate appeals procedure, this Court cannot agree with the conclusions reached by these colleagues. Accordingly, this Court finds Selsky is not entitled to absolute immunity.

 E. Effect of the Subsequent Article 78 Proceeding

 Defendants assert that the reversal of Cote's and Selsky's rulings in a subsequent Article 78 proceeding cured any due process violation suffered by Moye in his DOCS proceedings and that he therefore is not entitled to recover under § 1983.

 The applicable case law does not support this conclusion. The Second Circuit has recently held that, "an inmate is not deprived of due process where an administrative appeal has cured a hearing's procedural defects." Russell v. Scully, No. 92-2057, 1993 U.S. App. LEXIS 13253, 1993 WL 188677, at *3 (2d Cir. June 4, 1993) (emphasis added) (citing Young v. Hoffman, 970 F.2d 1154, 1156 (2d Cir. 1992); Williams v. Tavormina, No. 89-1247 T, 1992 U.S. Dist. LEXIS 21170 (W.D.N.Y. Aug. 28, 1992)). The rationale for this ruling was explained in Young: "We believe that, as a policy matter, this possibility of cure through the administrative appeals process will encourage prison administrators to correct errors as an alternative to forcing inmates to seek relief in state or federal courts." Young v. Hoffman, 970 F.2d at 1156 (emphasis added) (citing Harper v. Lee, 938 F.2d 104, 105 (8th Cir. 1991)).

 Moye was required to resort to an Article 78 proceeding in state court in order to obtain a reversal of the DOCS rulings. Inasmuch as the holdings in Russell and Young apply only when due process violations are cured through the administrative appeals process, they are not controlling in the instant action. Defendants' argument on this point must be rejected. *fn13"

 F. Qualified Immunity

 The standards for invoking the qualified immunity defense in the Second Circuit are well established. Public officials are entitled to qualified immunity from liability for damages if their conduct does not violate a clearly established statutory or constitutional right. Weg v. Macchiarola, 995 F.2d 15, 1993 WL 188673, at *2 (2d Cir. 1993). In order to receive this protection, a public official must demonstrate that it was objectively reasonable to believe that his or her conduct did not violate the clearly established right. Id. The Court is to look at what was clearly established at the time the action took place. Id.

 In determining whether a particular right was clearly established at the time the allegedly unconstitutional acts took place, this Court must consider three factors:

 

(1) whether the right in question was defined with "reasonable specificity"; (2) whether the decisional law of the Supreme Court and the applicable circuit court support the existence of the right in question; and (3) whether under preexisting law a reasonable defendant official would have understood that his or her acts were unlawful.

 Gan v. City of New York, 996 F.2d 522, 1993 WL 184198, at *9 (2d Cir. 1993) (citing Jermosen v. Smith, 945 F.2d 547, 550 (2d Cir. 1991), cert. denied, 118 L. Ed. 2d 211, 112 S. Ct. 1565 (1992)).

 In addition, 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. 800, 819, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982). 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 43, 46 (2d Cir. 1989)." McCormack v. Cheers, 818 F. Supp. 584, 599 (S.D.N.Y. 1993).

  Finally, "because the defense of qualified immunity is designed to relieve government officials of the burdens of litigation as well as of the threat of damages, summary judgment is encouraged as a device for disposing of claims barred by qualified immunity." Gan v. City of New York, 996 F.2d 522, 1993 WL 184198, at *10.

  With these principles in mind, the Court will consider defendants' assertion that they are entitled to qualified immunity with respect to plaintiff's claims on both the exclusion of bar and the assessment of confidential informants.

  1. Exclusion of a Witness

  At the time of Moye's hearing in March 1988, Cote and Selsky were on notice that witnesses should be permitted to give statements in prison disciplinary hearings unless there is a reason to exclude such statements which is logically related to protecting institutional safety or advancing other correctional goals. This Court has previously held that such a rule was clearly established in Ponte v. Real, which was decided by the Supreme Court in 1985. See Scott v. Coughlin, No. 89 Civ. 8436 (RJW), slip op. at 18 (S.D.N.Y. Mar. 19, 1991) (citing Fox v. Coughlin, 893 F.2d 475, 478 (2d Cir. 1990)). Thus, at the time of the hearing, no reasonable official could believe that denying Dunbar the right to testify, in the absence of threats to institutional safety or correctional goals, did not violate a clearly established constitutional right. Accordingly, qualified immunity is not available to defendants on Claims One and Three.

  2. Assessment of Confidential Informants

  As indicated above, neither the Second Circuit nor the Supreme Court has established a rule concerning how prison disciplinary boards are to assess the reliability of information provided by confidential informants. Thus, the second factor discussed in Gan, "whether the decisional law of the Supreme Court and the applicable circuit court support the existence of the right in question," Gan v. City of New York, 996 F.2d 522, 1993 WL 184198, at *9, tilts strongly in favor of defendants.

  The lack of decisional law precisely on point does not fully dispose of the matter. In Weber v. Dell, 804 F.2d 796 (2d Cir. 1986), cert. denied, 483 U.S. 1020 (1987), the Second Circuit held that a 1982 strip/body cavity search of an arrestee without reasonable suspicion that he was concealing a weapon or contraband violated the Fourth Amendment and that officials who conducted the search were not entitled to qualified immunity, despite the fact that the Second Circuit had not yet ruled on whether such searches were constitutional. The Second Circuit had, however, previously condemned the practice and, at the time of the search at issue in Weber, three other circuits had held such searches to be unconstitutional. Id. at 801 n.6, 803; see also Shabazz v. Coughlin, 852 F.2d 697, 701 (2d Cir. 1988) (discussing Weber). Thus, under certain circumstances, a right can be clearly established even in the absence of a specific ruling by the Second Circuit or Supreme Court.

  Upon a review of the existing case law in March 1988, this Court finds that the right to have an independent assessment of confidential informants was not clearly established at the time of the hearing. Other courts in this district are divided over whether this right was clearly established by March 1988. Compare Howard v. Wilkerson, 768 F. Supp. 1002, 1008 (S.D.N.Y. 1991) (right clearly established by October 1984) and Vasquez v. Coughlin, 726 F. Supp. 466, 472 (S.D.N.Y. 1989) (right clearly established by 1986) and Russell v. Coughlin, 774 F. Supp. 189, 199 (S.D.N.Y. 1991) (adopting Vasquez approach), rev'd sub nom. on other grounds Russell v. Scully, No. 92-2057, 1993 U.S. App. LEXIS 13253, 1993 WL 188677 (2d Cir. June 4, 1993) with Gittens v. Sullivan, 720 F. Supp. 40, 43-44 (S.D.N.Y. 1989) (at time of Gittens's hearing in January 1988, right was not clearly established).

   The court in Russell v. Coughlin cited to four pre-1988 cases in which other circuits held that there was a constitutional right to independent assessment of confidential informants' credibility and reliability. Russell v. Coughlin, 774 F. Supp. at 196 (citing Dawson v. Smith, 719 F.2d 896 (7th Cir. 1983); Kyle v. Hanberry, 677 F.2d 1386 (11th Cir. 1982); Smith v. Rabalais, 659 F.2d 539, 540-42 (5th Cir. 1981), cert. denied, 455 U.S. 992, 71 L. Ed. 2d 853, 102 S. Ct. 1619 (1982); Helms v. Hewitt, 655 F.2d 487, 502 (3d Cir. 1981), rev'd on other grounds, 459 U.S. 460, 74 L. Ed. 2d 675, 103 S. Ct. 864 (1983)).

  However, in March 1988, not all circuits agreed that there was such a right. As the Third Circuit noted in Helms, "other courts of appeals, faced with claims similar to those pressed here, have read Wolff to command almost complete deference to the judgment of prison officials on the need, if any, for administrative inquiry into the credibility and reliability of an informant." Helms v. Hewitt, 655 F.2d at 501 (citing Walker v. Hughes, 558 F.2d 1247, 1259 (6th Cir. 1977); McLaughlin v. Hall, 520 F.2d 382, 384-85 (1st Cir. 1975); Willis v. Ciccone, 506 F.2d 1011, 1018 (8th Cir. 1974)). Thus, while the Helms court did not adopt the approach established in the First, Sixth and Eighth Circuits, it did acknowledge the split between circuits on this issue.

  In light of this intercircuit split and the Second Circuit's silence on the issue, the right to have an independent assessment of the credibility and reliability of confidential informants was not clearly established at the time of Moye's hearing. Accordingly, Cote is entitled to qualified immunity with respect to Claim Two.

  CONCLUSION

  Plaintiff's motion for partial summary judgment is granted. Defendants' motion for summary judgment is granted in part and denied in part. That part of defendants' motion which seeks to dismiss Claims One and Three of the Amended Complaint is denied, while that part of the motion which seeks to dismiss Claim Two is granted.

  The parties are directed to complete discovery with respect to any remaining issues, including damages incurred in connection with Claims One and Three, by September 3, 1993 and to file a joint pre-trial order by October 1, 1993.

  It is so ordered.

  Dated: New York, New York

  July 2, 1993

  Robert J. Ward

  U.S.D.J.


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