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July 2, 1993

KELVIN MOYE, Plaintiff,

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

 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.

 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. ยง 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.


 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 ...

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