unduly burdening Clinton's prison administration. N.Y. Comp. Code R. & Regs. tit. 7, § 254.5(b) (1991) ("where an inmate is not permitted to have a witness present, such witness may be interviewed out of the presence of the inmate and such interview tape recorded.").
Trudo and Selsky further argue that the doctrine of qualified immunity protects them from liability. In actions brought under Section 1983, qualified immunity is an affirmative defense that must be pleaded by the defendant officials. Harlow v. Fitzgerald, 457 U.S. 800, 815, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982); Security and Law Enforcement Employees Dist. Council 82 v. Carey, 737 F.2d 187, 210 (2d. Cir. 1984). Once qualified immunity is pleaded, as it has been in this action, public officials performing discretionary functions are protected from personal liability unless their conduct "violate[s] clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. at 818. However, "the boundaries of the supposed 'right' must be sufficiently definite so that the official understood that his actions violated it . . . ." Eng v. Coughlin, 858 F.2d 889, 895 (2d Cir. 1988). In determining whether a particular right was clearly established, courts consider three factors: "(1) whether the right in question was defined with 'reasonable specificity'; (2) whether the decisional law of the Supreme Court and the applicable circuit court support the existence of the right in question; and (3) whether under preexisting law a reasonable defendant official would have understood that his or her acts were unlawful." Jermosen v. Smith, 945 F.2d 547, 550 (2d Cir. 1991), cert. denied, 503 U.S. 962, 112 S. Ct. 1565, 118 L. Ed. 2d 211 (1992).
In this case, we must determine whether Samuels had the clearly established right at the time of his September 1985 disciplinary hearing to call officer Nolan as a witness, despite the fact that Trudo considered Nolan's testimony unnecessary. In Ponte, decided in 1985, the year of the events in issue, the Court intimated that a disciplinary board could refuse to call an inmate's witness whom the board considered unnecessary. This was the gist of the Court's outlook when it recommended that a disciplinary board "state its reasons for refusing to call a witness, whether it be for irrelevance, lack of necessity, or the hazards presented in individual cases." Ponte, 471 U.S. at 496 (quoting Wolff, 418 U.S. at 566). The Court further stated that "'prison officials must have the necessary discretion to keep the hearing within reasonable limits . . . .'" Id. at 499 (quoting Wolff, 418 U.S. at 566). Moreover, the Court noted its previous "observation in Wolff that 'we should not be too ready to exercise oversight and put aside the judgment of prison administrators . . . . '" Id. (quoting Wolff, 418 U.S. at 566).
Based on Wolff and Ponte, the two most germane decisions at the time of the hearing, this Court reluctantly must conclude that Trudo and Selsky did not violate "a clearly established" right by failing to interview Officer Nolan. Trudo's decision fell within the flexible standard set forth in Wolff that balanced an inmate's right to adequate due process against the institutional needs of the prison. Fox v. Coughlin, 893 F.2d 475, 478 (2d Cir. 1990).
In a case subsequent to Wolff, the Second Circuit held that failing to allow an inmate to call a single witness during a 1979 disciplinary hearing subjected prison officials to liability under Section 1983. McCann, 698 F.2d at 120-25. Here, however, Captain Trudo allowed Samuels to call two of his three witnesses. These facts are much more similar to Fox, also decided after Wolff, where two of an inmate's seven witnesses were excluded from testifying at a 1983 hearing because prison officials deemed their testimony redundant. Fox, 893 F.2d at 478. In granting the prison officials qualified immunity, the Fox court stated that the case stood in "stark contrast to the hearing in McCann where none of the witnesses requested by the inmate were interviewed." Id.
Although the Fox court cautioned that "failure to . . . interview an inmate's requested witnesses without assigning a valid reason may in the future provide a sufficient basis for a viable § 1983 action," id., this standard was not clearly defined at the time the present cause of action accrued. Accordingly, because Selsky and Trudo had no forewarning that refusing to interview one of Samuels' witnesses at his 1985 disciplinary hearing could infringe upon his constitutional rights, the doctrine of qualified immunity bars Samuels' Section 1983 claim against them.
D. Samuels' Motion To Compel
Because we grant defendants' motion for summary judgment, additional discovery in this action is unnecessary. Therefore, Samuel's motion to compel Trudo to answer interrogatories is DENIED.
Consistent with this opinion, defendants' motion for summary judgment is GRANTED, and plaintiff's motion to compel is DENIED.
Date: New York, New York
March 10, 1995
Harold Baer, Jr.
United States District Judge
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