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August 16, 1995

ZAMADHI ZAMAKSHARI a/k/a JUAN SANCHEZ, Plaintiff, against JOEL DVOSKIN, Associate Commissioner of O.M.H., et al., Defendants.

The opinion of the court was delivered by: PECK

 TO THE HONORABLE SONIA SOTOMAYOR, United States District Judge:

 In this civil rights action brought pursuant to 42 U.S.C. ┬ž 1983, plaintiff Zamadhi Zamakshari is suing several officials affiliated with the New York State Office of Mental Health ("OMH") and the Department of Correctional Services ("DOCS") for alleged due process violations in connection with two prison disciplinary proceedings. As a result of the first (1988) hearing, Zamakshari was placed in the prison's Special Housing Unit for two years and lost good time credits, and as a result of the second (1990) hearing, he was placed in the Special Housing Unit for 60 days. The parties have cross-moved for summary judgment pursuant to Fed. Rule Civ. P. 56(c). For the reasons set forth below, I recommend that the Court grant defendants' summary judgment motion.


 In his complaint, Zamakshari seeks damages for the alleged denial of procedural due process stemming from two prison disciplinary hearings. The first hearing took place on January 8, 1988 at Sing Sing Correctional Facility ("the 1988 hearing") and the second hearing took place on May 4 and May 7, 1990 at the Greenhaven Correctional Facility ("the 1990 hearing"). Zamakshari alleges that his procedural due process rights were violated in the 1988 disciplinary hearing because defendants (1) denied him a gallery listing of potential witnesses, and (2) failed to consider documentary evidence of his psychiatric records. Zamakshari alleges that his procedural due process rights were violated in the 1990 hearing when defendants (1) failed to consider his psychiatric records or psychiatric testimony, and (2) failed to contact eyewitness Nurse Debbie Reilly.

 Zamakshari was found guilty of the disciplinary charges, and placed in the Special Housing Unit ("SHU") for two years in 1988 and recommended for loss of certain good time credits, and placed in the SHU for 60 days in 1990. Zamakshari alleges that as a result, he suffered withdrawal and depression.

 Zamakshari further alleges that he wrote a letter to defendant Thomas Coughlin, Commissioner of Corrections, advising Coughlin of the alleged deprivation of Zamakshari's rights during these hearings. (Cplt. at P 27.)


 Defendants are: Peter Horan, the hearing officer at Zamakshari's 1988 hearing; Joel Dvoskin, the OMH Associate Commissioner at the time of the 1990 hearing; Thomas Coughlin, Commissioner of DOCS; Paul Kimmelman, an Assistant Deputy Superintendent at Greenhaven and the hearing officer for the 1990 hearing; and Robert Jacques, OMH Unit Chief at Greenhaven Facility in May 1990.

 Plaintiff's History of Mental Illness

 Zamakshari's OMH records reveal that he has a long history of mental illness; (See Plaintiff's Rule 3(g) Statement ["Plf's 3(g)"], P 1.) In March 1982, Zamakshari was diagnosed with "Undifferentiated Schizophrenia" and prescribed Mellaril, a potent anti-psychotic medication. (Id., P 1(A).) In a 1985 psychological profile, Zamakshari's condition was described as "paranoid schizophrenia, in remission . . . Schizoid Personality Disorder with Paranoid and explosive characteristics" with prognosis "extremely guarded." (Id.) Since 1988, Zamakshari has been prescribed various anti-depressants and anti-psychotic medications including Elavil, Mellaril and Navane. Many of these prescriptions were discontinued after a short period of time because Zamakshari refused to take them. (Id., P 1(B).) Zamakshari was admitted to Central New York Psychiatric Center in 1992 in a state of psychotic regression which included ingesting feces and auditory hallucinations. (See Declaration of William Gibney ["Gibney Dec."], Zamakshari's attorney, P 3(I).)

 The 1988 Hearing

 On January 2, 1988, Zamakshari was involved in four separate instances leading to disciplinary charges. Specifically, Zamakshari was charged with: (1) refusal to obey a direct order and making threats, stemming from an incident in which Zamakshari refused to fasten his jacket when directed by a correction officer and threatened to fight him; (2) assault, refusal to obey a direct order and creating a disturbance, stemming from an incident in which Zamakshari refused an order to sit down, struck a correction officer, and caused other inmates to rise from their seats to help; (3) making threats, stemming from an incident in which Zamakshari threatened to have a correction officer killed; and (4) damaging state property and starting a fire, stemming from Zamakshari's removal of the stuffing from a mattress and setting it on fire. (Defendants' Rule 3(g) Statement ["Defs' 3(g)"], PP 2-5.)

 These charges were consolidated into one Tier III hearing, which was commenced before defendant Peter Horan on January 8, 1988. (Id. P 6.) *fn1" Prior to the hearing, Zamakshari had requested that his inmate assistant obtain a gallery listing of "M" gallery, "A" block, but was told that the listing was unavailable. (1988 Hearing Transcript ["1988 Tr."] at 37.) At the hearing, Zamakshari plead "not guilty" to all offenses, and claimed that his actions were a product of "auditory hallucinations, I was hearing voices." (Id. at 3, 21-22.) Further, Zamakshari requested that defendant Horan review his psychiatric record and that psychiatrist Dr. Gross testify. (Id. at 28.) Dr. Gross testified that he had reviewed Zamakshari's record and evaluated him, and concluded that his mental status was "essentially normal except for a feeling that the institution and people in the institution are out to get him which would go along with a paranoid nature." (Id. at 70-71.) Dr. Gross further testified that Zamakshari understood the consequences of his acts. (Id. at 72.) A second doctor requested by Zamakshari, Dr. Vener, also testified that Zamakshari was competent, although he admitted that he was not very familiar with Zamakshari's psychiatric record. (Id. at 75-76.)

 At the conclusion of the hearing, defendant Horan found Zamakshari guilty of all charges, based on the oral testimony of four correction officers and the written report of a fifth, and imposed a penalty of, among other things, two years' confinement to the Special Housing Unit ("SHU"), two years loss of phones, commissary and packages, and a recommendation of 30 months loss of good time. (1988 Tr. at 110-11.)

 The 1990 Hearing

 On April 24, 1990, while incarcerated in the Special Housing Unit at Greenhaven, Zamakshari was charged with interfering with an employee stemming from an incident in which he threw a cup orange juice containing medication at a nurse. (Defs.' 3(g) at P 14.)

 Defendant Hearing Officer Paul Kimmelman conducted a Tier III hearing on May 4 and 7, 1990. (See Ex. B. to Plf's 3(g): Transcript of May 4 and 7, 1990 Hearing ["1990 Tr."].) At the hearing, Zamakshari plead not guilty, claiming that he accidentally "sprinkled" the nurse with the orange juice and that he was not responsible for his actions because of his mental state. (1990 Tr. at 10.) Zamakshari made several requests for witnesses, including a social worker, a psychiatrist, Nurse Reilly (the nurse involved in the incident), and another night nurse, Nurse Cardinale. (1990 Tr. at 5-7.)

 Warren Skov, a psychiatric satellite unit chief, appeared at the 1990 hearing but refused to testify regarding Zamakshari's mental condition stating, "I'm under strict guidelines to what I can and cannot attest to [inaudible] mental health. . . But the only thing I can testify to is to what I've actually seen or experienced as to an incident." (1990 Tr. at 17-18.)

 Thereafter, defendant Kimmelman denied Zamakshari's request to have Dr. Chung, a psychiatrist, testify, stating, "I've been advised by Mental Hygiene Unit that they will only testify to what they saw, not about diagnosis of any other contents, just what they saw regarding disciplinary matters. So he will not testify." Id. at 34.) Defendant Kimmelman also denied Zamakshari's request for Nurse Reilly to appear as a witness, stating, "Nurse Reilly is no longer employed by the psychiatric, PSU Unit, or as an employee of the state of New York, so she's unavailable to call as a witness." (Id. at 33.) Finally, defendant Kimmelman denied Zamakshari's request to have Gail Cardinale, an evening nurse not involved in the incident, testify. Id. at 14.)

 At the conclusion of the evidence, which included Zamakshari's testimony and that of a correction officer who witnessed the event, defendant Kimmelman found Zamakshari guilty and gave him a penalty of sixty days keep-lock with loss of privileges such as packages, telephone, earphones, and commissary. (Id. at 45-46.) Defendant Kimmelman further commented "that you are under or have received treatment from the PSU, or Mental Hygiene Unit of this facility, does not relieve you or absolve you of appropriate conduct. And the conduct is not to throw items at staff." (Id. at 46.)

 Following this decision, Zamakshari wrote a letter to defendant Thomas Coughlin, Commissioner of Corrections, advising Coughlin of his confinement, but Coughlin did not direct that he be released. (Cplt. P 27; see Ex. G to Gibney Dec.)

 OMH Policy in 1990

 On March 14, 1990, defendant Joel Dvoskin, an OMH Associate Commissioner, wrote a letter to Anthony J. Annuci, Deputy Commissioner and Counsel of DOCS, clarifying OMH's position on OMH staff consultation with DOCS hearing officers during disciplinary proceedings:

1. Upon request of the disciplinary officer, both on his own behalf and that of the inmate, OMH clinical staff may be consulted by that officer as part of the disciplinary proceeding. This request for consultation must be made to the OMH Unit Manager.
3. Information obtained during this consultation must be kept confidential under Section 33.13 of the Mental Hygiene Law. Therefore, any disclosure of this information to the inmate or other persons is prohibited.
4. Confidentiality of information obtained from OMH clinicians regarding disciplinary procedures is also necessary to preserve the safety and security of staff and inmates in the prison environment. Most serious disciplinary charges involve disruptive or violent activities. If OMH staff are publicly perceived as providing a way of avoiding responsibility for such acts, it will in my experience increase not only the likelihood of such acts but the feigning of mental illness as well, thus draining needed resources away from inmates who really need them. Thus confidentiality is needed both to best use mental health resources and to protect the safety of the prison.

 (Plf's 3(g), Ex. C, emphasis added.)

 In his deposition testimony, defendant Dvoskin explained that he wished to give clear instructions to the DOCS hearing officers that "mental health staff in prisons should not be testifying on the record about ... whether or not a person should be exculpated because of mental illness for a disciplinary violation or whether or not they were competent to stand hearing." (Dvoskin Dep. at 10.) Dvoskin testified that mental health staff were permitted to testify off the record as to a prisoner's mental condition. (Id. at 12-14.) Defendant Dvoskin stated that this written policy was the result of a series of meeting attended by representatives from DOCS and the Attorney General's office, who agreed with the policy. (Id. at 14.) However, defendant Dvoskin did not think that this advice represented a policy change. Id. at 12-14.)

 Defendant Robert Jacques, Unit Chief at the Green Haven Psychiatric Satellite Unit ("PSU") from January or February 1990 to March 1991, confirmed that the policy was not new. (Jacques Dep. at 10.) He further testified that it was "probably" he who advised defendant hearing officer Kimmelman that Mr. Skov and Dr. Chung would not be available to testify as to Zamakshari's mental condition, but that such advice did not preclude private testimony to Kimmelman. (Id. at 14, 16.)

 Defendant Kimmelman testified that he understood the OMH policy to mean that information such as diagnosis and mental health status was privileged, but that he could take into account the mental health status of a prisoner in handing out punishment. (Kimmelman Dep. at 18, 23.) Further, he testified that information from witnesses which is "germane" to the hearing must be on the tape recording; however, he did not know whether a hearing officer was allowed to conduct a "private investigation" off the record in ...

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