of the July 8, 1990, hearing. Commissioner Coughlin responded on October 15, 1990, that plaintiff's appeal had been dealt with by Donald Selsky, and that he should have received a copy of the determination.
Plaintiff filed an Article 78 proceeding in New York State Supreme Court to compel reversal of Lt. Brimmer's determination. This action was rendered moot when Donald Selsky reversed Lt. Brimmer's determination on January 23, 1991. No grounds were stated for the reversal. However, Selsky stated in response to plaintiff's interrogatories, that the grounds for reversal were the same as in the June 18, 1990, reversal; namely, that the hearing officer failed to assess the testimony of the confidential witnesses and that requested witnesses were not called.
Plaintiff filed this § 1983 action in federal court on January 10, 1992, alleging a violation of his due process rights. Plaintiff moved for summary judgment on January 6, 1993, and defendants cross-moved for dismissal of the complaint or for summary judgment.
The Court will treat defendants' cross-motion as one for summary judgment. The entire file will therefore be reviewed in determining that motion.
I. MOTION FOR SUMMARY JUDGMENT:
A motion for summary judgment may be granted only when the moving party carries its burden of showing the absence of a genuine issue of material fact. Fed. R. Civ. P. 56; Goldman, Antonetti, Ferraiuoli, Axtmayer & Hertell Partnership v. Medfit Int'l, Inc., 982 F.2d 686, 689 (1st Cir. 1993); Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990) (citations omitted). "Ambiguities or inferences to be drawn from the facts must be viewed in a light most favorable to the party opposing the summary judgment motion." Project Release v. Prevost, 722 F.2d 960, 968 (2d Cir. 1983). In other words, a motion for summary judgment pursuant to Fed. R. Civ. P. 56 shall be granted only "when the pleadings, evidence obtained through discovery, and affidavits show that there is no genuine issue as to any material fact, and that the moving party is entitled to summary judgment as a matter of law." Lang v. Retirement Living Pub. Co., 949 F.2d 576, 580 (2d Cir. 1991). Therefore, "summary judgment will not lie if the dispute about a material fact is 'genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).
Thus, if the nonmoving party can not produce sufficient evidence to support the jury verdict, summary judgment is proper. Id. at 249. "In determining how a reasonable jury would decide, the Court must resolve all ambiguities and draw all inferences against the moving party." Lang, 949 F.2d at 580. However, when the moving party has met the burden, the nonmoving party must do more than "simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986); see also Liberty Lobby, 477 U.S. at 247-48. At that point, the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial. Id. "The judge's function is not . . . to weigh the evidence and determine the truth of the matter," Liberty Lobby, at 249, such "is the prerogative of the finder of fact." Murphy v. Provident Mutual Life Ins. Co., 923 F.2d 923, 930 (2d Cir. 1990) (Kearse, J., dissenting), cert. denied, 116 L. Ed. 2d 40, U.S. , 112 S. Ct. 65 (1991). Therefore, the judge's role is "to determine whether there does indeed exist a genuine issue for trial." Liberty Lobby, at 249.
In a case where both sides have moved for summary judgment, as is the case at bar, each side must sustain its burden of proving the absence of disputed issues of material fact in order to be successful.
II. CLAIM AGAINST COUGHLIN:
It is well settled that the personal involvement of a defendant is a prerequisite for the assessment of damages in a § 1983 action. McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977), cert. denied, 434 U.S. 1087, 55 L. Ed. 2d 792, 98 S. Ct. 1282 (1978). In their motion for summary judgment, defendants argue that the complaint should be dismissed with respect to defendant Thomas J. Coughlin, Commissioner, Dept. of Corrections ("Coughlin") on the grounds that it does not allege the requisite level of personal involvement to satisfy a § 1983 claim. This court agrees.
A supervisory official can be said to have been personally involved in a constitutional violation only if that official: (a) directly participated in the violation; (b) failed to remedy the wrong after learning of the violation through a report or appeal; (c) created a custom or policy fostering such violations, or allowed such a custom or policy to continue; or (d) was grossly negligent in managing subordinates who caused the violation. Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986).
Plaintiff alleges that Commissioner Coughlin was aware of the constitutional violations because plaintiff had written him about the matter. Plaintiff did write two letters. However, plaintiff's first letter to Coughlin constituted his appeal of the subject hearing, which was dealt with directly by Donald Selsky. The second letter sent by plaintiff sought information about the appeal's status. Commissioner Coughlin responded to the second letter by informing plaintiff that he was not directly handling the appeal, and that it was his understanding that Selsky had sent him a copy of the decision. Plaintiff does not allege in his complaint that Coughlin promulgated or was otherwise aware of any unconstitutional customs or policies. Plaintiff attempts to implicate Coughlin by arguing that Selsky acted as his agent in the matter of plaintiff's administrative appeal. While this may be true, plaintiff fails to allege that Coughlin was grossly negligent in his supervision of Selsky - the one possible argument for allowing an agency relationship to constitute personal involvement. Id. Nor does defendant Coughlin's awareness of plaintiff's claims constitute the requisite involvement, for Coughlin had taken the appropriate steps to remedy plaintiff's alleged wrong by assigning Selsky to review his appeal. He is not under the obligation to review every one of the thousands of cases dealt with by defendant Selsky. Accordingly, plaintiff's claim against defendant Coughlin has no merit and is dismissed.
III. CLAIM AGAINST SELSKY:
Plaintiff's complaint can be read to allege that Selsky's review of the hearing was constitutionally deficient in accordance with Williams; specifically, that he failed to remedy the wrong after learning of the violation through an appeal. Williams, 781 F.2d at 323-24.
Although the Second Circuit has not addressed the issue of whether Selsky is absolutely immune from liability, several of the district courts within the Circuit, including this one, have found that he does act as a quasi-judicial officer and therefore is immune from liability. Parris v. Coughlin, 90- CV-414 (N.D.N.Y. August 24, 1993) (1993 WL 328199); Parkinson v. Employee Assistant, 1993 WL 118451 (S.D.N.Y. April 12, 1993); Pacheco v. Kihl, No. CIV-90-549T (W.D.N.Y. Dec. 17. 1992); but see Moye v. Selsky, 826 F. Supp. 712, (S.D.N.Y. 1993). This court is in agreement with Parris, Parkinson, and Pacheco, and continues to follow the reasoning set forth therein. Therefore, Selsky is absolutely immune from suit, and the complaint against him is dismissed.
IV. CLAIM AGAINST GILTNER AND BRIMMER:
A. Plaintiff's Due Process Claim: