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January 28, 1994

DONALD SELSKY, Program Director, Inmate Discipline; JOHN P. KEANE, Superintendent, Sing Sing Correctional Facility; JOHN MAHONEY, Hearing Officer, Defendants.

The opinion of the court was delivered by: ROBERT P. PATTERSON, JR.


 Plaintiff Michael McConnell brought this action pursuant to 42 U.S.C. § 1983 charging that defendants denied him due process of law in the conduct of two Tier III disciplinary hearings at Sing Sing Correctional Facility in November 1990 and January 1991. Defendants and Plaintiff cross-move for summary judgment. For the reasons stated below, (1) Defendants' motions are granted and Plaintiff's motion is denied with respect to the November 1990 hearing, and (2) Plaintiff's motion for partial summary judgment is granted and defendant Mahoney's motion for summary judgment is denied in part and granted in part with respect to the January 1991 hearing.


 A. The November 1990 Hearing

 On November 15, 1990, Plaintiff Michael McConnell, then a prisoner at Sing Sing Correctional Facility, was served with two inmate misbehavior reports ("MR-1" and "MR-2"), charging him, respectively, with possession of a controlled substance and with possession of contraband fashioned into a weapon on November 14, 1990.

 On November 19, 1990, defendant John Mahoney, a Hearing Officer at Sing Sing, commenced a Tier III disciplinary hearing to determine whether Plaintiff was guilty of the charges in MR-1 and MR-2 and, additionally, whether Plaintiff should be placed in involuntary protective custody as a result of his cell being set afire on November 14, 1990. *fn1" At the beginning of the hearing, Mahoney advised Plaintiff that he could call witnesses on his behalf and was required to make procedural objections on claims promptly so that Mahoney could consider them and, if possible, respond. Plaintiff acknowledged that he received a copies of MR-1 and MR-2 on November 15, 1990, and was provided inmate assistance with respect to both MRs on November 17, 1990. Plaintiff (1) agreed to protective custody, (2) pleaded not guilty but requested no witnesses with respect to the weapons charges in MR-2, and (3) pleaded not guilty to the charges in MR-1 and requested additional time to review the charges. Mahoney adjourned the hearing for two days, until November 21, 1990, to permit Plaintiff to prepare a defense, stating that because the hearing was required to be completed by November 27, 1990, and because the Thanksgiving holiday was approaching, it would be necessary to complete all three hearings on November 21st.

 In his defense, Plaintiff made several arguments and requested that Mahoney call Corrections Officer Hill as a witness. Plaintiff argued that MR-1 should be dismissed as inconsistent with 8 NYCRR § 251-3.1 because it did not state when and where the drugs were found or specify the officer who found the contraband. *fn2" Plaintiff also argued that his due process rights were violated because McNamara, as the person who found the drugs, was required to make a written report and allegedly failed to do so. Defendant Mahoney explained to Plaintiff that McNamara was not required to write a misbehavior report because McNamara could not have known whether or not there was a violation until the substance had been tested and identified as contraband. Mahoney further pointed out, and Plaintiff acknowledged, that McNamara had signed the Contraband Receipt, which stated that McNamara found five paper packets "wrapped in disbursement form receipt in inmate McConnell's ID card holder after it had been removed from inmate's right shoe."

 When Mahoney then asked Plaintiff why he wanted to call Hill, Plaintiff said he wanted to ask Hill "if he found a controlled substance in my possession and if not, why is he writing me up for possession of a controlled substance." Lessing Aff., Exh. 1 at 9. Mahoney denied Plaintiff's request, stating, "We already know he didn't find it on you. The report states that." Id. Plaintiff replied, "That's all I had." Id. Plaintiff did not present any evidence in his defense or ask to call Sergeant McNamara as a witness.

 At the close of the hearing, defendant Mahoney found Plaintiff guilty of the charges in MR-1. McConnell appealed the determination to defendant Donald Selsky, Director of Special Housing/Inmate Disciplinary Program, who affirmed Mahoney's decision on January 29, 1991.

 As a result of his conviction on the charges in MR-1, Plaintiff was assigned to 180 days in the Special Housing Unit ("SHU"), 180 days' loss of commissary, packages and phones, and six months' loss of good time.

 B. The January 1991 Hearing

 On January 14, 1991, Plaintiff was served with another misbehavior report ("MR-3") charging him with written harassment. MR-3 alleged that, on January 12, 1991, Plaintiff passed a note to a nurse, D. Heady, R.N., while she was making medication rounds. The note requested that Heady give Plaintiff an address where he could write to her. The report charged that Plaintiff passed the note "in a secretive manner" and that the "note was amorous in content and harassing." MR-3 was prepared by Nurse Heady and endorsed by Corrections Officer Kerrigan, the officer to whom Heady had given the note.

 At his request, Plaintiff was assigned an inmate assistant, Ms. F. Etkin, to assist with his preparation for the hearing on MR-3. Plaintiff requested that Etkin interview both Heady and Kerrigan and report back to him. However, Etkin did not interview either Heady or Kerrigan because each worked a different shift than Etkin.

 At the hearing on MR-3 commenced on January 18, 1992, Plaintiff requested that Hearing Officer Mahoney adjourn the hearing and assign an assistant who would be able to interview Heady and Kerrigan for Plaintiff. McConnell answered the charges in MR-3 by stating that he had merely left a crumpled note on his cell gate and had asked Nurse Heady to throw it away. He requested that Mahoney call Heady and Kerrigan to testify. Mahoney denied McConnell's request for a new assistant and then adjourned the hearing and, in the interim, took Nurse Heady's tape-recorded testimony outside Plaintiff's presence. Heady testified that Plaintiff had passed the note to her through the cell bars and that she did not recall Plaintiff asking her to throw the note in the garbage.

 Although Plaintiff was not present when Heady testified, Mahoney played the entire testimony for Plaintiff on January 23, 1991, and gave him the opportunity to respond. After hearing Heady's testimony, Plaintiff renewed his request for Kerrigan's testimony and for assistance. Mahoney denied Plaintiff's request to call Kerrigan stating that, since Kerrigan endorsed the misbehavior report prepared by Heady, his testimony would not have ...

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