would be the logical conclusion when Eng is read in conjunction with Wolff.
In the case at bar, evidence was submitted to demonstrate that plaintiff had over 27 hours to do his own investigative work between the time he received his misbehavior report and the date of the disciplinary hearing.
Thus, plaintiff's right to an employee assistant never arose. The fact that he was confined for seven of the eight days in the interim is of no consequence because plaintiff was given the required minimum hours to do his own investigative work.
Plaintiff argues that even assuming, arguendo, that an inmate is not entitled to an employee assistant because he or she is not confined to SHU for a period of 24 hours between the time he or she receives notice of the charges and the actual date of the hearing, plaintiff was still entitled to an employee assistant because he was constructively confined during the 27 hours in question here.
Such contention is without merit. Defendants have submitted evidence through the testimony of witnesses that plaintiff, as well as other inmates, was allowed to participate in a variety of activities during the 27 hours in question. Furthermore, there was also evidence that plaintiff was actually able to do some of his own investigative work during this time period. Thus, there was enough evidence for the jury to reasonably conclude that plaintiff's confinement during this time period did not rise to the level of giving plaintiff the right to an employee assistant.
There was sufficient evidence to support the jury's verdict and this court is not convinced that the jury has reached a seriously erroneous result or the verdict is a miscarriage of justice. See Katara, 835 F.2d at 970. Therefore, plaintiff's motions made on the basis of failure to be provided with an employee assistant are denied.
D. THE RIGHT TO PRESENT DOCUMENTARY EVIDENCE
The plaintiff has also asserted that his right to certain documentary evidence was violated when the defendants denied him access to such evidence in his hearing. More specifically, plaintiff contends that he was denied access to certain reports and videotapes which were crucial in his attempt to marshall the facts and present a defense.
Let us first begin with the investigatory reports. The facts clearly show that plaintiff had in fact requested these reports during his disciplinary hearing, but such request was denied because defendant McGinnis was concerned with the confidentiality of these reports. It is plaintiff's contention that defendant McGinnis improperly denied his request without even checking to see if any of the documents he requested contained confidential information.
A closer examination of the hearing transcript does not support plaintiff's contention. The transcript of the disciplinary hearing reveals that defendant McGinnis did indeed deny plaintiff's request but did so because the reports plaintiff was seeking had confidential information such as names of informants and information on certain inmates. These information were protected by the Freedom of Information Law ("FOIL"). Defendant McGinnis did testify, however, that he advised plaintiff to contact defendant Mann, who was the Superintendent of the facility, if he wished to pursue the document request. Defendant McGinnis even offered to adjourn the hearing itself while plaintiff made such a request. Plaintiff denied this offer. Defendant McGinnis further testified that plaintiff knew his offer to adjourn the hearing was a sincere one since the hearing had actually been adjourned once before in order to accommodate plaintiff's request that certain hearing officers testify.
Based on such testimony, there is ample evidence to support the jury's verdict that plaintiff was not denied his right to certain documentary evidence: The plaintiff was given opportunity to pursue the document request and yet failed to do so. Based on these facts, there simply is no manifest injustice in the jury's verdict to warrant the granting of a new trial on this issue.
The same conclusion must be reached with respect to plaintiffs' alleged request for videotapes. There was evidence introduced at trial -- testimonial and documentary -- which indicated that the plaintiff never in fact requested the production of the videotapes in question. Thus, it was reasonable for the jury to accept such evidence and to accordingly determine that plaintiff was not denied his right to these videotapes. Based on these findings, plaintiff's alternative motions grounded in alleged violations of his right to documentary evidence are denied.
It is the court's determination that plaintiff failed to satisfy the lower, less stringent standard required for granting of a motion for a new trial as to all of his claims. Therefore, plaintiff's two motions pled in the alternative must be denied in their entirety.
IT IS SO ORDERED.
Binghamton, New York
April 26, 1994
Thomas J. McAvoy
Chief U.S. District Judge