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ABDUL-MATIYN v. NEW YORK STATE DEPT. OF CORRECTION

December 15, 1994

FARIS ABDUL-MATIYN, Plaintiff, against NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES, ET AL., Defendants.


The opinion of the court was delivered by: DENNY CHIN

 Chin, D.J. *fn1"

 Plaintiff pro se Paris Abdul-Matiyn commenced this action under 42 U.S.C. § 1983 alleging violations of his constitutional rights in connection with his confinement at the Eastern Correctional Facility (the "Facility"). Plaintiff's motion for a preliminary injunction has been denied, and pending before the Court is defendants' cross-motion for summary judgment.

 The Facts

 A. The Incident

 Plaintiff is confined in the Sensory Disabled Unit (the "SDU") of the Facility. On May 7, 1990, plaintiff was involved in an incident with another SDU inmate, Juan Morales. plaintiff contends that Morales bumped into him. Some pushing, shoving and punching ensued, and both plaintiff and Morales suffered injuries. Plaintiff sustained a broken nose.

 B. The Disciplinary Proceeding

 On May 9, 1990, as a result of the incident, plaintiff was served with written charges of misbehavior: assault on an inmate, fighting, and possession of a weapon. Plaintiff selected Pauline Lewis (apparently an employee of the Facility) to assist him in preparing a defense. She met with plaintiff and, at his request, interviewed nine inmates and one officer, preparing typed reports of these interviews.

 A disciplinary hearing was conducted on May 13 and 16, 1990. Plaintiff testified at the hearing. The witness statements obtained by Ms. Lewis at plaintiff's request were read into the record. Reports of Facility officials and medical records were also made part of the record. Plaintiff also submitted a statement written by education supervisor Fred Hirsch commending plaintiff for his assistance in an unrelated incident.

 Plaintiff was told at the hearing that if he needed further assistance to gather more information from witnesses, including individuals Ms. Lewis was unable to contact, the hearing would be adjourned and he would be provided with that assistance. He was also told that he could call witnesses to testify at the hearing, as long as the witnesses had "first hand relevant material." He was also given the opportunity to offer new evidence. (O'Connor Aff., Exh. B at 2-3, 5-6, 15). The transcript of the hearing shows that plaintiff was not prevented from presenting any evidence that he wanted to present.

 The hearing officer found plaintiff guilty of fighting and not guilty of assault and possession of a weapon. He imposed a penalty of 90 days cell confinement and loss of privileges, but 60 of the 90 days were suspended pending good conduct for a period of 180 days.

 The transcript of the hearing is somewhat garbled, as it jumps back and forth between May 13 and 16, 1990 as the hearing officer at one point apparently mistakenly put the tape in on the wrong side and recorded a "few moments" of testimony on the other side of the tape. *fn2" The transcript does show plaintiff explaining that Morales bumped into him, then came at him, hitting him. (Exh. B at 5-7). Plaintiff testifies that he did not recall hitting Morales, but he also stated that "if anything I had hit him with something." (Exh. B at 6).

 C. Plaintiff's Medical Care

 Following the incident on the evening of May 7, 1990, plaintiff was admitted to the prison infirmary, complaining of pain in the left wrist, right eye and nose. X-rays taken the next day showed no abnormalities of the wrist or eye, but they did show a non-displaced fracture of the nasal bone. Plaintiff was examined by Dr. Milicevic on May 9, 1990, and she determined that he could be released from the infirmary, as long as he did not participate in sports. She also ordered that plaintiff be scheduled for a consultation with a plastic surgeon. Plaintiff made no complaints when he was discharged back to his cell on May 9, 1994.

 An appointment was made for plaintiff with a plastic surgeon for May 17, 1990, but the appointment was cancelled, apparently by the plastic surgeon. The appointment was rescheduled for July 12, 1990. Plaintiff was examined then, and the plastic surgeon determined that a rhinoplasty should not be performed until at least six months had elapsed without injury to plaintiff. The plastic surgeon saw plaintiff again on February 8, 1991, and determined at that time that plaintiff should simply be given medication.

 D. The Complaint

 In his pro se complaint, plaintiff asserts a number of purported constitutional violations that he alleges were committed by the New York State Department of Correctional Services and various employees and officials of the Facility, including the hearing officer (Raymond Smith), the doctor who treated him after the incident (Dr. Raelene Milicevic), another physician (Dr. Jing Guo), the medical records clerk at the Facility (Kim McConnell, who, among other things, arranged plaintiff's numerous trips to outside doctors), and the education supervisor at the Facility (Fred Hirsch).

 Plaintiff apparently complains that defendants: (1) failed to protect him from the alleged attack by Morales; (2) failed to provide him with a fair disciplinary hearing; (3) failed to provide him with proper medical care; (4) failed to provide him with nutritional meals that comport with his religious requirements; and (5) retaliated against him for having previously filed a civil rights suit against defendant Hirsch.

 During discovery, the defendants who had then been served with process served interrogatories and document requests on plaintiff, asking him to provide details and support for his claims of unconstitutional conduct. Plaintiff responded by serving a document entitled "Plaintiff's Opposition to Defendants' Requests and Interrogatories."

 After plaintiff moved for a preliminary injunction, defendants cross-moved for summary judgment. Plaintiff submitted a statement in opposition to the cross-motion, to which he attached certain medical records, articles, and various other documents.

 Discussion

 A. Standards for Summary ...


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