The opinion of the court was delivered by: LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE Judge
The parties executed a consent to proceed before the undersigned on December 12, 1991.
On January 22, 1992, Plaintiff filed an amended complaint with leave of the court, and no objection from Defendants. The amended complaint added as Defendants Hans Walker, the Superintendent of Auburn Correctional Facility ("Auburn"), Frank Irvin, currently the Superintendent of Wende Correctional Facility ("Wende"), but formerly the First Deputy Superintendent at Auburn at the time of the incident at issue in this case, Edward Dann, the Deputy Superintendent for Security at Auburn, and John Doe, a confidential informant, incarcerated at Auburn. Plaintiff has alleged causes of action under 42 U.S.C. § 1983, 42 U.S.C. § 1985(3), and 42 U.S.C. § 1986. Specifically, Plaintiff claims that he was deprived of due process and equal protection under the Fourteenth Amendment, and subjected to cruel and unusual punishment in violation of the Eighth Amendment. Plaintiff also alleges a conspiracy by Defendants to deprive him of his constitutional rights.
Following extensive discovery, on November 16, 1992, Plaintiff filed a motion for partial summary judgment as to the liability of Defendants LeBaron, Grant, and Selsky for their alleged failure to independently assess the reliability of the confidential informant.
On March 8, 1993, Defendants filed a motion for summary judgment to dismiss the amended complaint on the basis that no genuine issue of material fact remained, and that all Defendants were entitled to judgment as a matter of law.
For the reasons set forth below, Plaintiff's motion for partial summary judgment is DENIED. Defendants' motion for summary judgment is GRANTED.
On May 19, 1990, a "food strike" occurred at the Auburn Correctional Facility. (G. 5).
Plaintiff, then incarcerated at Auburn, was, at that time, the Vice President of the Inmate Liaison Committee ("ILC"). (G. 6). Following the "food strike," Plaintiff was asked to attend a meeting between members of the ILC, Defendants Dann and Irvin, and Captain Dumas who is not a party to this lawsuit. (G. 6). During the meeting, Plaintiff told Irvin that he was unaware of the food strike as he had remained in his cell all day, and, as such, he was not aware of any reasons behind the strike. (G. 8-9). Irvin then directed Plaintiff and other ILC members to survey the inmate population to determine the reasons for the strike. (G. 11).
On May 21, 1990, during a meeting between Plaintiff, other ILC members, and a corrections sergeant, the results of the survey were disclosed. (G. 13). Shortly thereafter, Plaintiff claims that he, along with the ILC President, an inmate Jones, were confined to their cell, and then escorted to the Administration Building where they were strip-searched, handcuffed, and transported to Attica. (G. 14-16). Both Plaintiff and Jones were black; the other white and hispanic members of the ILC were not transferred to Attica. (G. 17-18).
Upon his arrival at Attica, Plaintiff was taken to the Special Housing Unit ("SHU"), where he was again strip-searched, handcuffed, and then escorted to a cell. (G. 15). On May 23, 1990, Plaintiff had led the inmate food strike. (G. 16). This report was based upon information received from a confidential inmate informant. (G. 16).
Utilizing an employee assistant, Plaintiff requested that a number of witnesses be contacted, that a copy of the videotape of the incident in the messhall at Auburn on May 19, 1990 be obtained, and that Plaintiff be provided with a copy of the confidential information. See Plaintiff's Amended Complaint, at p. 5, P 26. The employee assistant informed Plaintiff that one witness agreed to testify, but that his other requested witnesses were either transferred or not incarcerated at Auburn, and, therefore, unavailable to testify. Plaintiff's Amended Complaint, at p. 5, P 27. Plaintiff's requests for the videotape and a copy of the confidential information were denied. Plaintiff's Amended Complaint, p. 5-6, PP 28-29.
A hearing was held on May 25, 1990 where Defendant LeBaron presided as the Hearing Officer. Plaintiff's Amended Complaint, at p. 6, P 30. LeBaron denied Plaintiff's requests for three inmate witnesses as not relevant, and denied, without explanation, Plaintiff's requests for three inmate witnesses as not relevant, and denied, without explanation, Plaintiff's requests for Dann and Irvin to act as witnesses. Plaintiff's Amended Complaint, at p. 6, P 32. LeBaron also denied Plaintiff's request to view the videotape, and held that the confidential information received from the informant could not be disclosed. Plaintiff's Amended Complaint, at p. 6, PP 33-34. Following the hearing, LeBaron imposed a penalty of 730 days confinement in the SHU. See Affidavit of Patricia Priestley, Attica Inmate Records Coordinator, Exhibit K. Plaintiff filed an administrative appeal with Defendant Selsky's office on June 7, 1990. Affidavit of Patricia Priestley, Exhibit L. Selsky reversed LeBaron's decision, and ordered that a new hearing be held. Affidavit of Patricia Priestley, Exhibits M - O.
A new employee assistant was assigned to Plaintiff to investigate the report. Plaintiff's Amended Complaint, at p. 7, PP 40-41. However, the assistant did not return to advise Plaintiff of her investigation results prior to the new hearing scheduled for August 24, 1990. Plaintiff's Amended Complaint, at p. 8, P 41. Defendant Grant, the Hearing Officer at the new hearing, offered the investigation results to Plaintiff at the hearing, however, Plaintiff refused to accept the tendered results. Plaintiff's Amended Complaint, at p. 8, P 44; Affidavit of Patricia Priestley, Exhibit W, Transcript of Second Hearing, at pp. 3-4. Grant then adjourned the hearing. Exhibit W, Transcript of Second Hearing, at p. 5. The investigation results were delivered to Plaintiff in his cell by the employee assistant a few days later, however, Plaintiff again did not accept the results. Plaintiff's Amended Complaint, at pp. 8-9, P 46.
When the hearing reconvened, Grant allowed testimony from two inmates, however he denied Plaintiff's request for testimony from a third inmate as irrelevant. Affidavit of Patricia Priestley, Exhibit W, Transcript of Second Hearing, at pp. 9, 10, 20; Plaintiff's Amended Complaint, at p. 9, P 47. Defendant Irvin also testified at the hearing, describing the incidents which took place on May 19, 1990, and stating that the confidential informant had disclosed, within one hour of the food strike, that ILC members had organized the strike with members of the Inmate Grievance Resolution Committee, and that Plaintiff had been the ringleader of the strike. Affidavit of Patricia Priestley, Exhibit W, Transcript of Second Hearing, at p. 13-14. Irvin further stated that the confidential informant's reliability had been established through various administrative sources, including himself, and that the informant had a history of providing such information to Irvin. Exhibit W, at p. 14. Testimony as tot he reliability of the informant was also provided by Defendant Walker. Affidavit of Patricia Priestley, Exhibit X. Grant denied Plaintiff access to copies of the unusual incident reports of May 20 and 21, 1990 on the grounds that they were unavailable or irrelevant, and noted that Plaintiff, a messhall employee, had also been the ringleader of a workstoppage in another correctional facility. Exhibit W, at pp. 20-21. On September 5, 1990, Grant found Plaintiff guilty and imposed a penalty of 730 days confinement in the SHU, crediting the time already served since May 20, 1990. Affidavit of Patricia Priestley, Exhibits BB and CC.
Plaintiff appealed Grant's decision to Defendant Selsky, and, upon review, the penalty was reduced to 365 days confinement in the SHU, again giving Plaintiff credit for the time served since May 20, 1990. Affidavit of Patricia Priestley, Exhibit DD and GG.
Thereafter, Plaintiff brought an Article 78 proceeding, (N.Y. Civ. Prac. Law & R. § 7801 et seq. (McKinney 1990), challenging the administrative hearing on the ground that he was denied the right to call one inmate as a witness, he was denied his request to produce certain documents at the hearing, and that the hearing officer failed to make a first-hand assessment of the credibility and reliability of the confidential informant whose information was the basis of the initial misbehavior report. Affidavit of Andrew Lipkind, Esq., dated March 1, 1993, at p. 2, P 4. After denying all Plaintiff's claims except for the failure to independently assess the confidential informant claim, Acting New York State Supreme Court Justice Mark H. Dadd (Wyoming County) transferred Plaintiff's Article 78 petition to the Appellate Division of the New York State Supreme Court, Fourth Department, for disposition as to whether the determination of the hearing officer was supported by substantial evidence. Affidavit of Andrew Lipkind, Esq., at p. 2, P 5.
On April 24, 1992, the Appellate Division determined that the administrative record did not support a finding of guilt, and ordered the charges against Plaintiff to be expunged from his record. Affidavit of Andrew Lipkind, Esq., at p. 2, P 6. At the appellate level, Plaintiff raised the issue that Defendant Selsky had violated his rights by permitting a rehearing on the initial charge following its administrative reversal. The Appellate Division found this contention to be without merit. Affidavit of Andrew Lipkind, Esq., at p. 3, P 8.
At the time of the Appellate Division disposition, Plaintiff had completed his 365 day sentence in the SHU. During the time of the Plaintiff's confinement to the SHU, Plaintiff claimed that he was subjected to unsanitary inhumane living conditions, and subjected to intense emotional anguish, including the attempted suicide of the inmate in the next cell. (G. 21-23, 27-28). As a result of his confinement, Plaintiff stated that he was forced to withdraw from his program as a graduate student in the American Studies Department of the State University of New York at Buffalo, that he sustained physical injuries as a result of the prison's failure to provide him with proper health care and dental hygiene, and that he suffered injury by being unable to participate in programs and services available to the general prison population. Plaintiff's Amended Complaint, at pp. 13-14, PP 73-76.
Summary judgment will be granted pursuant to Fed.R.Civ.P. 56 when the moving party demonstrates that there are no genuine issues as to any material fact and that the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 331 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); Rattner v. Netburn, 903 F.2d 204, 209 (2d Cir. 1991). The party moving for summary judgment bears the burden of establishing the nonexistence of a genuine issue of material fact. If there is any evidence in the record based upon any source from which a reasonable inference in the nonmoving party's favor may be drawn, the moving party cannot obtain a summary judgment. Celotex, supra, at 331.
The function of a district court in considering a summary judgment motion is not to resolve disputed issues of fact, but to determine whether there is a genuine issue to be tried. Rattner, supra, at 209. In assessing the record, including any affidavits, exhibits, and other submissions, the court is required to resolve all ambiguities and to draw all factual inferences in favor of the nonmoving party. Anderson, supra, at 255; Rattner, supra, at 209.
Plaintiff has raised five causes of action: (1) a cause of action for conspiracy to deprive Plaintiff of his civil rights by Defendants Walker, Irvin, Dann, and John Doe (the confidential informant), pursuant to 42 U.S.C. §§ 1985(3) and 1986, (2) a cause of action for cruel and unusual punishment for the treatment and unsanitary conditions Plaintiff allegedly encountered in the Attica SHU, (3) a cause of action for discrimination based on Plaintiff's claim that he was transfered to Attica because of his race, (4) a cause of action for a violation of his due process rights based on the first disciplinary hearing conducted by ...