The Search of Plaintiff's Cell
and the Alleged False Charges
Plaintiff alleges that Officer White's search of his cell on November 9 violated Section 1983 because (1) White allegedly should not have entered the cell without cause and (2) White allegedly planted a razor in plaintiff's cell to frame him for reporting on Officer Telesky, the officer whom plaintiff had accused of setting a fire in a cell in September, 1989.
Hudson v. Palmer, 468 U.S. 517, 82 L. Ed. 2d 393, 104 S. Ct. 3194 (1984) permits even arbitrary cell searches in prison. Therefore plaintiff cannot complain of the search itself.
Plaintiff's claim that Officer White framed him in retaliation for reporting Officer Telesky must survive. Under Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir. 1986), the filing of false charges is normally not actionable under Section 1983. Franco v. Kelly, 854 F.2d 584, 589 (2d Cir. 1988), however, held that a prisoner stated a valid claim against prison guards by alleging that the guards falsely accused the prisoner of insubordination in retaliation for the prisoner's cooperation with authorities investigating abuse of inmates. Plaintiff here similarly asserts interference with his right to petition for redress of grievances, and thus states a claim. Furthermore, there is a genuine issue of material fact as to whether CO White did retaliate against plaintiff.
Nor is CO White entitled to dismissal of this claim on the basis of qualified immunity. Under Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982), "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established rights of which a reasonable person would have known." Id at 818. Defendants offer no reason why a reasonable person would not have known of the principle articulated in Franco at the time of the events in question, which occurred one year after Franco was decided.
The claim based on the cell search and the alleged frame-up is asserted also against CO Young and Patterson on the theory that they conspired with CO White
and against Patterson on the additional theory of supervisory liability. The claim against these defendants, however, must be dismissed.
Plaintiff does not support his allegation of a conspiracy with any specific facts. Angola v. Civiletti, 666 F.2d 1, 4 (2d Cir. 1981), requires that an allegation of a conspiracy to violate a person's civil rights be pleaded with specificity.
Even construing plaintiff's allegations liberally, he fails to meet this burden as neither his affidavit nor his complaint contains anything supporting the allegation of conspiracy. This aspect of plaintiff's case is therefore dismissed.
Plaintiff's claim that Patterson, as a supervisory official, is responsible for White's alleged wrongdoing also must be rejected. Supervisory officials are responsible for the wrongs of their subordinates if they have "actual or constructive notice of unconstitutional practices and demonstrate 'gross negligence' or 'deliberate indifference' by failing to act." Al-Jundi, 885 F.2d at 1066 citing Meriwether v. Coughlin, 879 F.2d 1037, 1048 (2d Cir. 1989). Patterson, however, did not supervise White in the quotidian performance of his duties. Nor does plaintiff allege, beyond his conclusory allegation of conspiracy, that Patterson knew of the deprivation and failed to remedy it. Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994). Plaintiff's claim based on the false filing of a misbehavior report in retaliation for plaintiff's informing on CO Telesky therefore survives only against CO White.
The Allegedly Inadequate Notice
Plaintiff complains that Officer Young did not deliver notice of the misbehavior report. Officer Young contends that he did. Whether he did or did not is immaterial, however, because plaintiff received notice at the initial hearing on this matter on November 14, 1989, after which it was adjourned for one week, giving plaintiff plenty of time to prepare his defense. Thus, any procedural defect in notice by Young subsequently was cured by Patterson. Defendants' motion on this point therefore is granted. Grillo, 31 F.3d 53 at 57 (subsequent procedure can cure earlier procedural defect).
The Alleged Due Process
Violations at the Hearing
Plaintiff alleges several violations of due process at the November 14th and 21st hearings.
First, plaintiff maintains that he was not given adequate assistance at the hearing. Eng v. Coughlin, 858 F.2d 889, 897-98 (2d Cir. 1988) and Wolff v. McDonnell, 418 U.S. 539, 570-71, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974), require an inmate to be given assistance at a disciplinary hearing only if the issues are unduly complex, the inmate is illiterate, or the inmate is confined in SHU or otherwise is incapable of preparing for or participating in the hearing. There is no indication that any of these circumstances was present in plaintiff's case. Therefore defendants' motion on this point must be granted.
Next, plaintiff says the disciplinary ruling was not supported by sufficient evidence. Superintendent v. Hill, 472 U.S. 445, 455, 86 L. Ed. 2d 356, 105 S. Ct. 2768 (1985) and Zavaro v. Coughlin, 970 F.2d 1148, 1152 (2d Cir. 1992), require a disciplinary hearing disposition to be supported by "some evidence." The eyewitness testimony of one officer is sufficient if the officer testifies to the particular prisoner's acts. See Hill, 472 U.S. at 457; Griffin v. Spratt, 969 F.2d 16, 22 (2d Cir. 1992). Patterson heard CO White's eyewitness testimony that he found an illegal razor in plaintiff's cell, which is sufficient under Hill. This aspect of defendants' motion therefore is granted.
Further, plaintiff contends that Patterson was not impartial at the hearing. Prisoners are guaranteed impartial hearing officers in disciplinary hearings. Wolff v. McDonnell, 418 U.S. at 570-71; Patterson v. Coughlin, 905 F.2d 564, 569 (2d Cir. 1990); 7 N.Y.C.R.R. 254.1 (1992). Plaintiff, however, does not allege how Patterson was impartial, other than through plaintiff's insufficient allegations of Patterson's participation in a conspiracy to deny plaintiff his rights. To state a claim on this basis, a plaintiff must allege that the hearing officer was biased or prejudged the facts. Id. As plaintiff fails to do this, defendants' motion is granted on this point.
Finally, plaintiff argues that he was improperly excluded from the hearing and thereby prevented from calling his witnesses. A hearing officer is permitted to limit a prisoner's procedural rights at a disciplinary hearing, including the right to attend the hearing and call witnesses, if such limitation is necessary to serve some penological purpose. Wolff 418 U.S. at 566, Kingsley v. Bureau of Prisons, 937 F.2d 26, 30 (2d Cir. 1991); Malik v. Tanner, 697 F. Supp. 1294, 1302 (S.D.N.Y. 1988). The official has the burden of justifying such an exclusion by showing it was rational. Kingsley, 937 F.2d at 30-31. As noted in Malik, the threat of violence justifies excluding a prisoner from his hearing. Malik, 697 F. Supp. at 1302. The transcript of the hearing, particularly Patterson's uncontroverted description of plaintiff's threatening motions, supports the contention that plaintiff threatened violence and justifies Patterson's exclusion of plaintiff from the hearing.
Defendants' motion for summary judgment is denied with respect to plaintiff's claim against Officer White for the alleged retaliatory filing of an allegedly false misbehavior report, and is granted in all other respects. Plaintiff's cross motion for summary judgment with respect to the alleged due process deficiencies prior to and at his hearing is denied.
Dated: January 4, 1995
Lewis A. Kaplan
United States District Judge