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July 20, 1994

JEFFREY FINN, Defendant.

The opinion of the court was delivered by: ROBERT P. PATTERSON, JR.


 This action is brought by Plaintiff, a state prisoner, under 42 U.S.C. § 1983 and the Fourteenth Amendment for an alleged violation of his due process rights arising out of a disciplinary hearing presided over by Defendant on August 16, 1990. Defendant moves for summary judgment pursuant to Federal Rule of Civil Procedure 56(c) on the grounds that Defendant's findings were supported by sufficient evidence presented at the hearing thereby not depriving Plaintiff of his due process rights and because Defendant is entitled to qualified immunity.


 On August 10, 1990, Corrections Officer Maria Velardo filed an inmate misbehavior report charging Plaintiff, Michael Walsh, with violating Inmate Rules 101.20 and 101.10. (Leong Aff. Submitted pursuant to local rule 3(g), P 2). Inmate Rules 101.20 and 101.10 provide respectively that "inmates shall not intentionally expose the private parts of their bodies" and "inmates shall not, under any circumstances make any threat, spoken, in writing, or by gesture." Plaintiff was confined to his cell on August 10, 1990 to await a disciplinary hearing that would determine whether he had intentionally exposed his private parts and threatened a corrections officer. (Leong Aff. Ex. 1.).

 The disciplinary hearing was conducted by Lieutenant Finn, the Defendant, on August 16, 1990. At the hearing, Defendant found Plaintiff guilty of the violations charged on the basis of the misbehavior report. Defendant sentenced Plaintiff to 180 days keeplock and 180 days loss of packages, commissary and telephone privileges. Id. at P 8. Plaintiff remained in keeplock confinement until Donald Selsky, the Department of Correctional Services Director of Special Housing and Inmate Discipline, reversed Defendant's decision on the grounds that "contradictory evidence was presented at hearing which was not thoroughly resolved by hearing officer." Id. at P 9. Thereafter, Plaintiff filed this suit pursuant to 42 U.S.C. § 1983 and the Fourteenth Amendment claiming a violation of his due process rights by Defendant's decision to punish him based solely on the misbehavior report.


 I. Legal Standard

 Summary judgment is appropriate if the evidence offered demonstrates that "there is no genuine issue as to any material fact and [that] the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby Inc., 477 U.S. 242, 250, 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). Furthermore, in determining whether there is a genuine issue of material fact, the court must resolve all ambiguities, and draw all inferences, against the moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962) (per curiam).

 II. Due Process

 Although prisoners retain rights under the Due Process Clause of the Fourteenth Amendment, these rights may be diminished by the needs and exigencies of the correctional system. Wolff v. McDonnell, 418 U.S. 539, 556, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974). Notwithstanding such deference to the institutional needs of prisons, the Supreme Court has noted that prison officials may not infringe on prisoners' liberty interests through disciplinary proceedings without a modicum of evidence to support their decisions. Superintendent, Mass. Correctional Inst. v. Hill, 472 U.S. 445, 455, 86 L. Ed. 2d 356, 105 S. Ct. 2768 (1985). Accordingly, due process requires "that there be some evidence to support the findings made in the disciplinary hearing." Id. at 457. See also Freeman v. Rideout, 808 F.2d 949, 954-55 (2d Cir. 1986), cert. denied, 485 U.S. 982, 99 L. Ed. 2d 484, 108 S. Ct. 1273 (1988).

 Plaintiff contends that the evidence which was relied upon in this case, an unsworn misbehavior report charging Plaintiff with violations which the report's co-signer could not verify in her testimony and which inmate Edward Miller, as well as Plaintiff, testified did not occur, does not satisfy the "some evidence" standard expostulated in Hill. In support of this contention, Plaintiff argues that to hold that a misbehavior report alone constitutes "some evidence", regardless of whether clearly relevant witness testimony nullifies its content, would seriously erode the inmate's due process rights. Defendant counters by asserting that, under Hill, courts are not allowed to assess the relative weight of the evidence when determining the "some evidence" standard thereby precluding this Court from considering Plaintiff's argument since it entails such an assessment.

 In Hill, a prison guard heard sounds of a scuffle in a prison walkway. When he entered the walkway, he discovered an inmate with a swollen eye and a bleeding mouth. Subsequently, the guard saw three inmates fleeing together down the walkway. There were no others in the enclosed area. 472 U.S. at 447-48. The guard concluded that the three inmates had acted as a group in assaulting the victim, and so testified at their disciplinary hearings. Although exculpatory evidence - specifically the victim's assertion that the accused inmates did not assault him - was presented, the Supreme Court held that even though the guard's evidence was "meager" it satisfied the due process standard. Id. at 457. The exculpatory evidence was irrelevant because, although it presumably could have allowed the disciplinary board to reach a contrary conclusion, it would not have nullified the evidence of guilt on which the board relied. As explained by the Court:

ascertaining whether this [some evidence] standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead the relevant question is whether there is any evidence in the record that could ...

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