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 Judgment
Fed. R. Civ. P. 56(c) provides that summary judgment is warranted where the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." A "genuine issue" exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). A fact is "material" if it "might affect the outcome of the suit under governing law." Id., 477 U.S. at 248, 106 S. Ct. at 2510.
Under Rule 56, a party moving for summary judgment can meet its burden either by producing evidence showing the absence of a genuine issue of material fact or by pointing out to the court that there is an absence of evidence supporting one or more essential elements of the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 2554, 91 L. Ed. 2d 265 (1986). Furthermore, Rule 56(e) provides:
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.
In deciding a motion for summary judgment, the evidence and the inferences drawn from the evidence must be "viewed in the light most favorable to the party opposing the motion." Adickes v. S.H. Kress and Co., 398 U.S. 144, 158-159, 90 S. Ct. 1598, 1609, 26 L. Ed. 2d 142 (1970). "Only when reasonable minds could not differ as to the import of evidence is summary judgment proper." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991). The function of the court is not to weigh the evidence and determine the truth of the matter, but rather to determine whether there is a genuine issue for trial. A summary judgment motion will not be defeated, however, merely on the basis of a "metaphysical doubt" about the facts, Matsushita Elec. Indus. Co. v. Zenith Radio Corp. 475 U.S. 574, 586, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986), "or on the basis of conjecture or surmise," Bryant, 923 F.2d at 982. The nonmoving party must come forward with significant probative evidence in support of its complaint. See Capital Imaging v. Mohawk Valley Medical Association, 996 F.2d 537, 542 (2d Cir. 1993).
Used properly, Rule 56 is a "vital procedural tool to avoid wasteful trials," id. at 541, and "to isolate and dispose of factually unsupported claims." Celotex, 477 U.S. at 323-24, 106 S. Ct. at 2553.
B. Due Process
This Court will first address whether defendants are entitled to summary judgment on the second claim in plaintiff's complaint. Plaintiff's second claim for relief alleges that both defendants Henneberg and Kelly violated plaintiff's right to due process under the Fourteenth Amendment at the November 1991 disciplinary hearing.
1. Defendant Henneberg
Plaintiff claims that defendant Henneberg denied him "the opportunity to meaningfully marshal and present evidence in his defense, thereby depriving the plaintiff of his right to procedural due process." (P. Memo, p. 12.) Specifically, plaintiff asserts that Henneberg refused to question witnesses about circumstantial evidence, declined to produce physical evidence, and failed to remain impartial during the proceeding. (P. Memo, pp. 8, 12.) Henneberg responds that no constitutional violation occurred as a result of his conduct as a disciplinary hearing officer. (D. Memo at 1.) This court agrees.
An analysis of whether the protective procedures afforded plaintiff at the hearing were sufficient is "not required unless 'there exists a liberty or property interest which has been interfered with by the State.'" Young v. Hoffman, 970 F.2d 1154, 1156 (2d Cir. 1992) (quoting Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 460, 109 S. Ct. 1904, 1908, 104 L. Ed. 2d 506 (1989)), cert. denied, 114 S. Ct. 115, 126 L. Ed. 2d 80. The Supreme Court recently reexamined the circumstances under which state prison regulations afford inmates a liberty interest protected by the Due Process Clause:
States may under certain circumstances create liberty interests which are protected by the Due Process Clause. But these interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.
Sandin v. Conner, 115 S. Ct. 2293, 132 L. Ed. 2d 418, 1995 U.S. LEXIS 4069, *21 ( 1995) (internal citations omitted).
The inmate in Sandin, Conner, was charged under Hawaii prison regulations with "high misconduct" punishable by incarceration in the Special Holding Unit ("SHU"). After an adjustment committee hearing, Conner was sentenced to 30 days SHU confinement. The Supreme Court addressed "the question whether disciplinary confinement of inmates itself implicates constitutional liberty interests." 1995 U.S. LEXIS 4069, at *26. The Court held that "Conner's discipline in segregated confinement did not present the type of atypical, significant deprivation in which a state might conceivably create a liberty interest." Id. The Court noted that in Hawaii, "disciplinary segregation, with insignificant exceptions, mirrored those conditions imposed upon inmates in administrative segregation and protective custody." Id.
The Special Holding Unit (SHU) houses inmates placed in disciplinary segregation, administrative segregation, and protective custody. Single-person cells comprise the SHU and conditions are substantially similar for each of the three classifications of inmates housed there. With the exception of one extra phone call and one extra visiting privilege, inmates segregated for administrative reasons receive the same privilege revocations as those segregated for disciplinary reasons.