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.
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.
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.
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