The opinion of the court was delivered by: FREDERICK J. SCULLIN, JR.
Presently before this court is the December 20, 1993, Report and Recommendation of Magistrate Judge David N. Hurd, recommending that defendants' motion to dismiss the complaint be granted in part and further that the motion be converted to one for summary judgment and be granted in part and denied in part. Objections to the Report-Recommendation were submitted by the parties and duly considered by the court. Upon review of the objections and the entire file, this court adopts the Report and Recommendation except for that portion recommending the complaint be dismissed as against Donald Selsky on the basis of absolute immunity.
Magistrate Judge Hurd recommends that the complaint be dismissed as against defendant Donald Selsky (Selsky), citing the prevailing sentiment in this district and others that he is entitled, as a quasi-judicial officer, to absolute immunity. See e.g., Auburn Inner City Branch N.A.A.C.P. v. Coughlin, Civil No. 85-CV-922, Memorandum Decision and Order, (N.D.N.Y. Jan. 7, 1994) (Auburn); Parris v. Coughlin, 1993 U.S. Dist. LEXIS 11947, No. 90-CV-414 (N.D.N.Y. August 23, 1993); Dawes v. Selsky, No. 91-CV-479 (N.D.N.Y. August 30, 1993); Parkinson v. Employee Assistant, DCF, 1993 U.S. Dist. LEXIS 4604 (S.D.N.Y. April 7, 1993); Pacheco v. Kihl, No. CIV-90-549T (W.D.N.Y. Dec. 17, 1992). This court is disinclined to accept that view in light of our consideration of absolute immunity in Gelatt v. County of Broome, 811 F. Supp. 61 (N.D.N.Y. 1993), and the recent immunity discussion in Moye v. Selsky, 826 F. Supp. 712 (S.D.N.Y. 1993), and Young v. Selsky, 41 F.3d 47, 1994 U.S. App. LEXIS 33046, 1994 WL 653405 (2d Cir. 1994).
The decisions in this district granting Selsky absolute immunity have (as do most immunity inquiries, See Burns v. Reed, 500 U.S. 478, 486, 114 L. Ed. 2d 547, 111 S. Ct. 1934 (1983) and cases cited therein)), relied upon a functional analysis of Selsky's position to justify the absolute immunity defense. The analysis generally invokes the factors set forth in Butz v. Economou, 438 U.S. 478, 57 L. Ed. 2d 895, 98 S. Ct. 2894 (1978), and restated in Cleavinger v. Saxner, 474 U.S. 193, 202, 88 L. Ed. 2d 507, 106 S. Ct. 496 (1985). Those factors, in summary form, consist of 1) functional autonomy; 2) procedural safeguards; 3) political autonomy; 4) reliance on precedent; 5) adversarial process; and 6) correctability of error on appeal. See Gelatt, 811 F. Supp. at 66, citing Cleavinger, 474 U.S. 193, 202, 88 L. Ed. 2d 507, 106 S. Ct. 496; Butz, 438 U.S. 478, 512, 57 L. Ed. 2d 895, 98 S. Ct. 2894.
In those cases where Selsky was granted absolute immunity, courts have found that the procedural safeguard factor, as it applies to the underlying procedures afforded at the disciplinary hearing level, justifies absolute immunity for Selsky. See e.g., Parkinson v. Employee Assistant, DCF, 1993 U.S. Dist. LEXIS 4604, *7-8 (relying on Pacheco v. Kihl, supra)). However, two recent cases have held that Selsky is not entitled to quasi-judicial absolute immunity in light of the Cleavinger factors. The Southern District of New York, in Moye v. Selsky, 826 F. Supp. 712 (S.D.N.Y. 1993), found that the six factors weighed in favor of qualified, rather than absolute, immunity for Selsky. Additionally, the Second Circuit, in Young v. Selsky, 41 F.3d 47, 1994 U.S. App. LEXIS 33046, 1994 WL 653405 (2d Cir. 1994) applied the Cleavinger functional analysis in a factual context similar to the case at bar and held that Selsky was only entitled to qualified immunity. In their decisions, both courts engaged in thorough discussions of how these standards applied to Selsky in his capacity as the sole appellate hearing officer for the New York State Department of Correctional Services (DOCS).
Because absolute immunity should not be extended any further than justified, Burns, 500 U.S. at 486, (1991), and the burden to justify extension is on the person asserting it, Buckley v. Fitzsimmons, 125 L. Ed. 2d 209, 113 S. Ct. 2606, 2613 (1993); Forrester v. White, 484 U.S. 219, 224, 98 L. Ed. 2d 555, 108 S. Ct. 538 (1988), this court will evaluate whether the defendant Selsky has sustained his burden in light of the prevailing case law applying the Cleavinger functional analysis.
This component of the functional analysis refers to the need to assure that the individual official can perform his functions without the threat of harassment or intimidation. This court concurs with the findings in Young and Moye that there is no evidence that Selsky has been subjected to harassment and/or intimidation as a result of the numerous lawsuits brought against him by inmates. While those courts recognized the potential detrimental effects of vexatious litigation by prisoners, both concluded that qualified immunity and proper application of the Federal Rules of Civil Procedure sufficiently shield Selsky from harassment by meritless lawsuits.
Young, 41 F.3d 47, 1994 WL at *5-6; Moye, 826 F. Supp. at 721. This court, therefore, finds that Selsky possesses functional autonomy sufficient for him to perform his duties free from harassment or intimidation.
II. PROCEDURAL SAFEGUARDS
In the Second Circuit's decision in Young, the court found that Selsky often gave prison staff members advice on the conduct of hearings. The court concluded that, because he often provides assistance in response to both general and specific inquiries from hearing officers, "in certain cases, Selsky may be the only reviewer of rulings that are in essence his own." Young 1994 WL at *6 (citations omitted). Such a procedural framework creates a serious potential for due process violations in a disciplinary review process.
Additionally, Judge Ward in Moye found that because there was a lack of "evidentiary rigor" at the hearing, which is not cured by an administrative appeal to Selsky, inequity would result by holding the hearing officer to a higher standard of liability than that imposed on the review officer. Moye, 826 F. Supp. at 721-722. The court also found that, notwithstanding the difference in rank, Selsky's function as a reviewer on appeal was sufficiently similar to that of the hearing officer to warrant parity for immunity purposes. Therefore, since prison hearing officers are only entitled to qualified immunity for their official acts, the same should apply to Selsky in his capacity as a reviewing official. Id.
Furthermore, Selsky has previously advised the court that he had administratively reviewed over 15,000 Tier III disciplinary determinations between 1988 and 1990. Dawes v. Selsky, No. 91-CV-479 (N.D.N.Y. August 13, 1992) (Report-Recommendation of Magistrate Judge DiBianco, p.5). Assuming that rate has not decreased, Selsky would be obliged to insure constitutional conformity in 625 hearings each month. This court is not convinced, at this juncture, that the resources necessary for such a massive task are in place. Nor are we persuaded that, absent such resources, such a volume is consistent with an "adjudicatory" function, which at the least would require thorough review. While it has been argued that the volume of cases weighs in favor of immunity rather than against it, a system which purports to offer meaningful review yet is patently incapable of doing so is a compelling reason to subject it to exactly the constitutional scrutiny provided under qualified immunity.
This factor concerns the need to insure that the officer is insulated from external influences. It is generally accepted that Selsky is the Commissioner's designee and his decisions are not reviewed by the Commissioner. Parkinson, 1993 U.S. Dist. LEXIS 4604, at *14. He performs duties in addition to reviewing appeals, including "lecturing at training programs for hearing officers and visiting facilities for training purposes." (Coughlin Supp. Aff. at 11). "Selsky is also in regular contact with prison staff in connection with ruling on applications for extensions of time to conduct hearings and other matters related to the administration of the disciplinary system." Parkinson, 1993 U.S. Dist. LEXIS 4604 at *15. Aside from the obvious potential conflict of ruling on appeals where he has been involved in the hearing process, these additional duties do not appear to be the functions of an autonomous judicial officer. This functional interplay comes perilously close to the ...