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July 13, 1994

THOMAS J. COUGHLIN, III, Commissioner, Dept. of Corrections; DONALD SELSKY, Director of Special Housing/Inmate Discipline; T.H. Giltner; R. Brimmer, Defendants.

The opinion of the court was delivered by: DAVID N. HURD

 United States Magistrate Judge


 In his civil rights complaint pursuant to 42 U.S.C. § 1983, plaintiff alleges that while he was an inmate at the Auburn Correctional Facility in Auburn, New York, he was placed in involuntary administrative confinement in violation of his due process rights. Specifically, he alleges that he was denied the right to present witnesses at a hearing to determine whether to adopt a recommendation that he be administratively confined. Plaintiff additionally claims that as a result of these due process deprivations he was unlawfully confined in the Special Housing Unit ("SHU") for the period from March 30, 1990, until August 29, 1990, (152 days) when he was transferred to another facility. Plaintiff brings this suit against the defendants in their individual and official capacities, seeking compensatory and punitive damages for the time spent in SHU.

 Presently before the court is plaintiff's motion for summary judgment and defendants' cross-motion for dismissal or summary judgment pursuant to Fed. R. Civ. P. 56. For the following reasons, plaintiff's motion is denied and defendants' motion for summary judgment is granted in part and denied in part.


 On March 30, 1990, an altercation took place at Auburn Correctional Facility, wherein an inmate was sliced in the neck with a "shank. " plaintiff, having been spotted in the vicinity of the victim at the time of the incident, was issued a misbehavior report the next day, charging him with assault, fighting and possession of a weapon. He was placed in administrative confinement in SHU pending the results of a Tier III disciplinary hearing. A disciplinary hearing was held on April 6, 1990, wherein Lt. Richards acted as hearing officer. On April 9, 1990, Lt. Richards found plaintiff not guilty of the charges of assault (100.10); fighting (100.13); and possession of a weapon (113.10). The following day, Lt. Richards filed an opinion recommending plaintiff's continued administrative confinement in SHU. He based this recommendation on confidential information heard at the April 6, hearing, and advised that plaintiff's presence in the general population would jeopardize the safety and security of the facility.

 Lt. Giltner conducted a Superintendent's hearing on April 16, 1990, to determine whether to adopt the above-mentioned recommendation. Lt. Giltner made the determination to adopt the recommendation that plaintiff remain in SHU. This determination was reversed on appeal to Donald Selsky on June 18, 1990, for inter alia, failure to call requested witnesses.

 A rehearing was conducted by Lt. Brimmer on July 8, 1990, wherein plaintiff's requested witnesses were again refused and the recommendation for plaintiff to remain in SHU was again adopted. Donald Selsky this time affirmed the hearing officer's determination, deciding on September 7, 1990, that the hearing comported with established procedures.

 Meanwhile, on August 29, 1990, plaintiff was transferred from SHU in Auburn to Shawangunk Correctional Facility where he was released into the general population.

 Plaintiff wrote to the Commissioner of the Department of Correctional Services, Thomas Coughlin, on September 14, 1990. He sought information on the status of his appeal 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.


 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 ...

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