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August 7, 1995

LANCE CARTER, Plaintiff,
DONALD CARRIERO, et al., Defendants.

The opinion of the court was delivered by: WILLIAM M. SKRETNY

 Before this Court is the motion of defendants Roy Henneberg and Walter R. Kelly for summary judgment pursuant to Fed. R. Civ. P. 56. Plaintiff brings this action under 42 U.S.C. § 1983, alleging in his first claim for relief that defendants Donald Carriero, Thomas Breckon, Richard Maronski, Anthony Marrano, and Superintendent Walter Kelly violated plaintiff's rights under the Eighth and Fourteenth Amendments by an unwarranted physical assault. Plaintiff's second claim for relief alleges that Captain Roy Henneberg and Superintendent Kelly violated plaintiff's right to due process under the Fourteenth Amendment at a subsequent disciplinary hearing. Defendant Henneberg moves for summary judgment on the second claim for relief, and defendant Kelly moves for summary judgment on both claims for relief. This Court has subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1343.

 In support of their motion for summary judgment, defendants have submitted a memorandum of law ("D. Memo"); a supplemental memorandum of law ("D. S.Memo"); a statement of undisputed facts pursuant to Rule 25 of the Local Rules of Civil Procedure for the Western District of New York ("D. Facts"); an affirmation by Walter R. Kelly ("Kelly Aff."); an affirmation by Roy Henneberg ("Henneberg Aff."), with exhibits; and a supplemental affidavit of Walter Kelly ("Kelly S.Aff."). *fn1"

 In opposition to defendants' motion, plaintiff has submitted a memorandum of law ("P. Memo"); a supplemental memorandum of law ("P. S.Memo"); a statement of material facts in genuine dispute pursuant to Local Rule 25 ("P. Facts"); an affidavit of Lance Carter ("Carter Aff."); and an affirmation by Mary C. Baumgarten ("Baumgarten Aff."), with exhibits, including the Tier III Hearing transcript at Exhibit 6 ("Transcript"). Oral argument was heard on July 26, 1995.

 For the reasons set forth below, this Court will grant defendant Henneberg's motion for summary judgment, and grant in part and deny in part defendant Kelly's motion for summary judgment.


 Plaintiff, an inmate at Wende Correctional Facility, was incarcerated at Attica Correctional Facility ("Attica") in 1991. On November 4, 1991, a misbehavior report was issued against plaintiff. The report charged plaintiff with violent conduct, assault on staff, refusing a direct order, threats, and a movement regulation violation. (Baumgarten Aff. P 9, exh. B; Henneberg Aff. P 4, exhs.)

 According to the misbehavior and other incident reports, plaintiff engaged in disruptive behavior while standing in formation in the Attica recreation yard on November 4, 1991. Corrections Officer Donald Carriero ordered plaintiff to step out of formation and assume the pat-frisk position. During the pat-frisk, he ordered plaintiff to remain still several times. After completing the frisk, Officer Carriero ordered plaintiff onto the gallery and to lock-in to his cell. Plaintiff became verbally abusive and refused to lock his cell door. Officers Carriero and Richard Maronski went to plaintiff's cell to investigate the problem. As they approached plaintiff, plaintiff punched Officer Carriero in the chest and grabbed his baton from his holster. A struggle ensued for control of the baton, during which plaintiff hit Carriero in the chest with the butt of the baton. When Officer Maronski tried to help Officer Carriero restrain plaintiff, plaintiff bit Officer Maronski's hand. All three fell to the floor and broke the baton in two pieces.

 Sergeant Thomas Breckon and Officer Anthony Marrano responded to the incident and found Officers Carriero and Maronski struggling with plaintiff on the cell floor. Breckon and Maronski handcuffed plaintiff and escorted him off the gallery to the facility hospital where he was treated for lacerations to his lip. Officers Maronski and Carriero were transported to Wyoming County Community Hospital. Officer Carriero suffered a bite to his leg and bruises to his left hand, and Officer Maronski suffered bruises to his cheek and knee and a bite to his right hand. (Henneberg Aff. P 4, exhs.)

 Plaintiff offers a different version of these events. During the initial frisk, according to plaintiff, Officer Carriero groped and pulled his genitals, and punched his ribs. (Carter Aff. P 4.) After Carriero ordered plaintiff to return to his cell and plaintiff started walking, Carriero began to push and shove him. (Carter Aff. P 5.) Once plaintiff reached his cell, he returned to the gallery and asked the Officer in Charge if he had any law library slips. (Carter Aff. P 6.) The officer did not, and, as plaintiff returned to his cell, another officer made racial remarks toward him. Upon finally reaching his cell, plaintiff forgot to lock the door. (Carter Aff. P 7.) Six corrections officers entered plaintiff's cell shortly thereafter and beat him. (Carter Aff. P 8.) Each officer struck, punched, and kicked plaintiff numerous times in the face, head, chest, legs, and genitals. (Carter Aff. P 9.) Plaintiff claims to have discovered after the beating that four of the corrections officers were defendants Carriero, Maronski, Breckon, and Marrano.

 On November 10, 1991, a Tier Ill Superintendent's Hearing was commenced before Hearing Officer Captain Roy Henneberg with respect to the incident. (Henneberg Aff. P 3.) At the start of the hearing, four inmate witnesses were selected for interview. (Transcript, p. 2.) Henneberg denied plaintiff's request to be present at the examination of witnesses for the stated reason that plaintiff was incarcerated in the Special Housing Unit. (Transcript, p. 9.) Plaintiff agreed to submit a question to the witnesses and have their testimony recorded and played back for his review and response. (Transcript, p. 9.) After review of the witnesses' recorded testimony, four additional witnesses were requested and interviewed. (Transcript, pp. 22-26.) The testimony of those witnesses was also recorded and played for plaintiff's review. (Transcript, p. 26.)

 During the preliminary questioning by Henneberg and after reviewing all witness testimony, plaintiff alleged that the charges against him were not written on one ticket. (Transcript, pp. 11, 12, 27, 28.) He asserted that the Use of Force Report prepared in connection with the incident stated that a baton was broken during the incident while the Misbehavior Report omitted the broken baton. (Transcript, pp. 11, 12.) Defendant declined to consider the broken baton as evidence because the misbehavior report did not charge plaintiff with breaking it. (Transcript, p. 12.) At the close of the hearing, plaintiff renewed his objections to the ticket. (Transcript, p. 27.) Plaintiff further objected that Henneberg did not ask the question submitted by plaintiff before witness interviews and that defendant did not conduct the hearing impartially. (Transcript, pp. 28, 29.)

 On November 18, 1991, Henneberg sustained the misbehavior report and imposed a penalty of 360 days confinement to the Special Housing Unit, with a suspension of 90 days and a deferment of 180 days. (Transcript, p. 29.) Plaintiff then submitted an appeal to Donald Selsky, Director Special Housing/Inmate Discipline Program, who affirmed the November 1991 disciplinary hearing. (Baumgarten Aff. P 20, exh. I.)

 On August 5, 1992, plaintiff filed a pro se complaint. Nixon, Hargrave, Devans & Doyle was appointed counsel for the plaintiff, and by motion dated May 21, 1993, plaintiff sought to amend the complaint to add new causes of action and defendants. The Hon. Leslie G. Foschio, United States Magistrate Judge for the Western District of New York, granted the motion in part on September 22, 1993, adding Captain Henneberg and Superintendent Kelly as defendants. (Baumgarten Aff. P 3.)

 Defendants Kelly and Henneberg now move for summary judgment. The first claim for relief in plaintiff's amended complaint alleges that defendant Kelly, "with personal involvement, knowledge and acquiescence" in the alleged assault, denied plaintiff his rights under the Eighth and Fourteenth Amendments. (Amended Complaint P 24, 25.) Plaintiff's second claim for relief alleges that at the Tier Ill hearing defendant Henneberg "violated plaintiff's right to disciplinary due process under the Fourteenth Amendment and pursuant to 42 U.S.C. § 1983," by "denying plaintiff's requests for the production of witnesses . . . and physical evidence . . . ." Plaintiff further alleges that defendant Kelly had "personal involvement, knowledge, and acquiescence" in the hearing. (Amended Complaint P 33.)

 Plaintiff seeks $ 1,000,000 damages against each defendant and an order directing that plaintiff's disciplinary record be expunged of any record of the November 1991 incident or subsequent incidents relating thereto.


 A. Standard for Summary ...

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