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June 19, 1995


The opinion of the court was delivered by: LEWIS A. KAPLAN, UNITED STATES DISTRICT JUDGE

KAPLAN, District Judge.*

 Plaintiff Ian Dawes, a former inmate at the Great Meadow Correction Facility ("GMCF"), sues New York State Department of Correctional Services ("DOCS") personnel pursuant to 42 U.S.C. § 1983 (1988), complaining about alleged procedural deficiencies in nine separate disciplinary actions against him at GMCF. He claims also that the elimination of a DOCS postage subsidy for inmates' non-legal mail violated the First Amendment.

 Defendants are Lieutenants Shovah, Hamlin, Vladyka and DiBiase, and Hearing Officers Harrison and Patterson, each of whom presided over one or more hearings against plaintiff. The hearings occurred on September 26, 1989 ("Hearing A"), November 22, 1989 ("Hearing B"), November 27, 1989 ("Hearing C") December 12, 1989 ("Hearing D"), January 18, 1990 ("Hearing E"), March 3, 1990 ("Hearing F"), November 17, 1990 ("Hearing G"), and November 27, 1990 ("Hearing I"). *fn1" In addition, plaintiff sues Deputy Superintendent ("DSP") Carpenter, who allegedly ratified and condoned the allegedly unconstitutional proceedings on appeal, and Commissioner Coughlin, who changed DOCS' postage policy.

 Each disciplinary action dealt, inter alia, with plaintiff's alleged destruction of DOCS property. Plaintiff was found guilty and ordered to pay restitution to the State in each case. Although plaintiff does not deny that he destroyed this property, he nevertheless claims that the proceedings violated the Fourteenth Amendment guarantee of due process of law because he was (1) denied the assistance of a DOCS employee in preparing his defense, (2) denied the opportunity to attend the hearings, (3) denied the opportunity to call witnesses or to attend the testimony of favorable witnesses, and/or (4) illegitimately forced to pay restitution, allegedly in retaliation for his frequent litigation against DOCS and without sufficient evidence of the pecuniary loss to DOCS for which he was directed to pay restitution.

 Defendants move for summary judgment on all of plaintiff's claims. Plaintiff cross-moves for summary judgment on his due process claims regarding the imposition of restitution penalties, his alleged exclusion from the hearings, and on his First Amendment claim.


 Disciplinary Proceedings

 Each proceeding against plaintiff involved three steps. First, plaintiff was charged with misbehavior and allowed time to prepare a defense. It is in this stage that plaintiff claims he improperly was denied assistance during several proceedings. Second, plaintiff was given a hearing on the charges. Plaintiff claims, inter alia, that he improperly was precluded from attending or calling witnesses at several of the hearings. Third, plaintiff received punishment, including the challenged restitution penalties, and appealed from the disposition, allegedly to DSP Carpenter.

 Disciplinary Proceedings --

 The Filing of Charges and

 Selection of an Assistant

 Each action against plaintiff was initiated by a DOCS employee who filed a Misbehavior Report (a "Report") that described the claimed wrongful behavior and the rule or rules allegedly violated. *fn2" (See, e.g., Ex. A at 6) The Reports at issue here allege, inter alia, various acts of destruction of DOCS property, including three instances in which plaintiff damaged the plexiglass on his cell bars (Ex. A at 6; Ex. D at 4; Ex. E at 6), two cases in which plaintiff damaged electric shaving clippers and bed sheets ([clippers] Ex. F at 5; Ex. G at 5; [bedsheets] Ex. B at 6; Ex. H at 4), the destruction of a guard's watch (Ex. I at 7), and the disabling of a set of handcuffs (Ex. C at 9).

 After a Report was issued, plaintiff was given notice of the charges and an opportunity to collect evidence and prepare a defense. However, because plaintiff was in a Special Housing Unit ("SHU") during the course of every proceeding, he was unable to move about the prison and collect evidence. As required by regulation in such circumstances, plaintiff was allowed to select an assistant whom he could direct to gather evidence and question witnesses. 7 N.Y.C.R.R. § 251-4 (1994). The group eligible for selection were DOCS employees designated for that purpose and listed on an Assistant Selection Form (a "Selection Form"), which plaintiff was given and asked to sign before every hearing. (See, e.g., Ex. A at 11)

 The Selection Forms from the proceedings at issue indicate that in most cases plaintiff refused either to select an assistant or to sign the Selection Form. (See, e.g., Ex. C at 11) When plaintiff did select an assistant, the notes on the Forms show that the assistant questioned witnesses and otherwise conducted the inquiry as directed. *fn3" (See, e.g., Ex. G at 10) On one occasion, however, it appears that plaintiff may have been denied an assistant despite requesting one. A Selection Form dated September 14, 1989, indicates that plaintiff requested an assistant in preparation for Hearing A, although he did not sign this form. (Ex. A at 11) A second unsigned Selection Form dated September 20, 1989 also indicated that plaintiff refused to select an assistant. (Ex. A. at 12) No explanation is given as to why this second Selection Form was prepared. At the Hearing, Lt. Shovah, the hearing officer, asked plaintiff if he had refused assistance. Plaintiff said that he had not. Shovah told plaintiff that the Selection Form indicated otherwise. Evidently, Shovah had only the September 20 Selection Form in his possession at the hearing, which he showed to plaintiff. Plaintiff then said that, although he did not sign the Selection Form presented to him, he had never received the particular form possessed by Shovah. It appears that Shovah, after questioning plaintiff further, concluded that the September 20 Selection Form was correct and therefore that assistance had been waived, as he continued the hearing despite plaintiff's protest. (Ex. A at 16-18) Defendants say that the September 14 form surfaced from DOCS records only later.

 Disciplinary Proceedings --

 The Hearings

 After plaintiff was given a chance to prepare a defense with his assistant, hearings were held on the charges in each Report. Plaintiff claims that a number of the hearings as conducted violated the Fourteenth Amendment because: (1) he was excluded from Hearings B and F (Cpt PP 5, 13), (2) he was denied witnesses at Hearings A, C and F (Cpt PP 2, 5), and (3) he was excluded from the testimony of favorable witnesses at Hearing I (Cpt P 13). The particulars of each hearing as they bear on these claims are as follows:

 1. Plaintiff was excluded from Hearing B because he had assaulted employees by throwing feces at them the morning of and in the two days before the hearing. *fn4" (Ex. B at 1) Plaintiff refused to attend Hearing F without giving a reason. (Ex. F at 11)

 2. Pursuant to DOCS regulations, an inmate may request witnesses and direct documentary evidence to the hearing officer either before the hearing, via the inmate's assistant or by direct communication with the hearing officer, or at the hearing. 7 N.Y.C.R.R. § 253 (1994). At Hearing A, plaintiff called two DOCS corrections officers as witnesses. Both testified, one in person and the other over the telephone from his home. (Ex. A. at 23-25)

 As noted above, plaintiff was excluded from Hearing C. The hearing officer, defendant Patterson, made a detailed inquiry into plaintiff's behavior. Patterson questioned a corrections officer, who said that prior to the hearing plaintiff had threatened to throw urine and feces at the staff and otherwise to "do bodily harm" to DOCS personnel, and in fact had thrown feces and urine a number of times over the preceding two days. The corrections officer said also that plaintiff had been informed that his behavior would result in his being excluded from the hearing, which only provoked more threats from plaintiff. The exclusion of plaintiff prevented him from calling witnesses at the hearing, ...

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