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 differed from hers and would have been redundant. Mahoney also denied Plaintiff's request for further assistance.
At the close of the hearing, Mahoney found Plaintiff guilty of written harassment. Mahoney imposed a suspended sentence of 60 days in the SHU and warned that any further violations of the same nature could result in his near term release being delayed. Plaintiff did not appeal Mahoney's decision.
After a hearing on February 12, 1991, a parole board denied for twelve months Plaintiff's request for release. The board cited Plaintiff's "poor behavior" and noted that he had accrued six tickets, four of them for Tier III violations.
C. Procedural History of the Case
Plaintiff filed his complaint in this action, pro se, on September 17, 1991. He filed a motion for leave to file an amended complaint on May 12, 1992, which unopposed motion was granted on May 29, 1992. The pro se amended complaint charges that the defendants violated his constitutional right to due process with respect to the hearing on MR-1 in several respects: (1) that MR-1 did not comply with DOCS regulations; (2) that defendant Mahoney denied Plaintiff's request to call Corrections Officer Hill, the author of MR-1, as a witness; (3) that there was insufficient evidence to support Mahoney's finding of guilt; (4) that Mahoney was not impartial; and (5) that defendant Selsky violated Plaintiff's due process rights by failing to correct on appeal the allegedly unconstitutional conviction on the charges in MR-1. The amended complaint also asserts several claims with respect to the January 1991 hearing on MR-3.
Plaintiff filed this motion for summary judgment, pro se, on September 10, 1992, and defendants cross-moved for summary judgment on October 30, 1992. Thereafter, Plaintiff secured pro bono counsel, and the Court accepted additional submissions by the parties.
With respect to the November 1990 hearing, Plaintiff opposes defendant Mahoney's motion for summary judgment only with respect to the claim that Mahoney denied Plaintiff's request to call Hill as a witness. Plaintiff moves for partial summary judgment on the issue of liability with respect to that claim. Plaintiff also opposes defendant Selsky's motion for summary judgment but does not move for summary judgment with respect to Selsky at this time.
With respect to the January 1991 hearing, Plaintiff opposes defendant Mahoney's summary judgment motion only with respect to Plaintiff's claims that: (1) Mahoney refused to permit Plaintiff's request to allow Officer Kerrigan, who signed MR-3, to testify, and (2) Mahoney denied Plaintiff assistance in preparing a defense to the charges in MR-3. With respect to those claims, Plaintiff moves for partial summary judgment on the issue of liability only.
Plaintiff does not oppose defendant John P. Keane's motion for summary judgment. Accordingly, that motion is granted.
Summary judgment is appropriate if the evidence offered demonstrates that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The burden rests on the moving party to demonstrate the absence of a genuine issue of material fact, Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970), and the Court must view the facts in the light most favorable to the non-moving party, United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962).
A. The November 1990 Hearing: Mahoney's Denial of Plaintiff's Request to Call Hill
Plaintiff opposes defendant Mahoney's motion for summary judgment with respect to Plaintiff's claim that Mahoney deprived him of due process by declining to call Corrections Officer Hill to testify in the hearing on MR-1, and moves for partial summary judgment on the issue of liability only. Because Mahoney reasonably determined that Hill's testimony was not necessary, Mahoney's motion is granted, and Plaintiff's motion is denied.
An inmate's right to due process includes the right to call witnesses to present relevant, material evidence at a disciplinary proceeding. Wolff v. McDonnell, 418 U.S. 539, 566, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974). A hearing officer may refuse to call a witness for reasons "logically related to preventing undue hazards to 'institutional safety or correctional goals,'" Ponte v. Real, 471 U.S. 491, 497, 85 L. Ed. 2d 553, 105 S. Ct. 2192 (1985) (citation omitted), or because the proposed testimony is irrelevant or unnecessary. Kingsley v. Bureau of Prisons, 937 F.2d 26, 30 (2d Cir. 1991). The hearing officer carries the ultimate burden of proving the rationality of his refusal to call a witness. Id. at 30-31.
At the beginning of his joint hearing on MR-1, MR-2, and the recommendation for involuntary protective custody, Mahoney told Plaintiff of his right to call witnesses. Plaintiff chose to request Hill as a witness but not McNamara. His purpose was clear. He wanted Hill to testify that he had not found the drugs in Plaintiff's possession. Thus his purpose was not to prove his lack of guilt, but to prove that MR-1 had been prepared by the wrong person, in alleged violation of regulations and Plaintiff's due process rights.
Mahoney understood plaintiff's argument and pointed out that McNamara could not fill out a misbehavior report because, until the substance he found was tested, he could not have known of any violation to report. After asking Plaintiff what testimony he desired to elicit and after Plaintiff answered that he wanted Hill to acknowledge that he had not found the contraband in Plaintiff's possession, Mahoney denied the request on the grounds that the documentary evidence already demonstrated what Plaintiff wished to show. To call Hill thus served no purpose.
Plaintiff's argument that Hill's testimony would have shown that MR-1 violated 8 NYCRR § 251-1.4(b) has little substance. That section provides that a misbehavior report
shall be made in writing by the employee who has observed the incident or who has ascertained the facts, and where more than one employee has personal knowledge of the facts, a report shall be made by each such employee or, where appropriate, each such employee shall endorse his name on a report made by one employee.