(b) Automatic administrative review of confinement prior to the formal hearing by an officer not involved in the initial disciplinary complaint, may have led to a neutral decision which would satisfy constitutional requirements, see Russell, 910 F.2d at 77-78, part I(B);
(c) Potentially sufficient oral or written instructions by the defendant Keane to subordinates to indicate that he sought to comply with known constitutional requirements and is thus entitled to qualified immunity. See Anderson v. Creighton, 483 U.S. 635, 640, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987).
In addition, it is not clear whether or not plaintiff was aware or was informed of the possible delay of his hearing and the reasons for it, and had an opportunity to request an earlier hearing or to object to the delay. The submissions of both plaintiff and defendants are silent at this juncture with respect to what notice, if any, plaintiff received concerning the delay and what reaction, if any, plaintiff made or could have made.
The factual matters presented by defendants, and others mentioned above, require further development, and an opportunity for plaintiff to respond to them, prior to any decision under Fed.R.Civ.P. 56 concerning whether or not this case should go forward in other respects. Defendants' motion to dismiss the complaint under Fed.R.Civ.P. 12(b) is denied; defendants' motion for summary judgment is denied without prejudice to renewal by submitting further affidavits and documentary material within 45 days of the date of this memorandum order with respect to the issues identified above.
Plaintiff may submit responses to such a submission or request specific discovery with respect to the matters raised by defendants in their submission. See Thomas v. Yonkers Police Dept, 147 F.R.D. 77, 80-81 (SDNY 1993). All other discovery is stayed pending the outcome of such procedures.
Dated: White Plains, New York
February 22, 1994
/s/ John S. Martin, USDJ for VINCENT L. BRODERICK, U.S.D.J.