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September 28, 1995

RAYMOND LEE, Plaintiff, against THOMAS A. COUGHLIN, III, Commissioner, JAMES MAHONEY, Hearing Officer, Defendants

The opinion of the court was delivered by: SOTOMAYOR



 Plaintiff Raymond Lee, currently incarcerated in Coxsackie Correctional Facility, brings this action pro se under 42 U.S.C. § 1983. Plaintiff alleges that defendant, James Mahoney, as the hearing officer who presided at plaintiff's administrative prison hearing on assault charges, deprived him of due process by denying him as employee assistant to aid him during the hearing and that defendant Thomas A. Coughlin violated his rights by affirming Mahoney's constitutionally infirm decision on appeal. Plaintiff was found guilty of the assault charges and served 376 days in segregation from which he was released after the determination of guilty was annulled as a result of an Article 78 proceeding.

 Defendants move for summary judgment *fn1" under Rule 56 of the Federal Rules of Civil Procedure. Plaintiff cross-moves for summary judgment. For the reasons discussed below, I deny defendant Mahoney's motion for summary judgment on the ground of qualified immunity and grant plaintiff's motion for summary judgment against him. I grant defendant Coughlin's motion for summary judgment on the ground that plaintiff has failed to state or prove a claim against him.


 While at Sing Sing Correctional Facility, plaintiff Lee was issued an Inmate Misbehavior Report (hereinafter "IMR") dated June 9, 1992, signed by A. Millen *fn2" charging him with assault, a violation of institutional Rule 100.10. According to Millen


on 6/9/92 while returning from HBA yard (Tappan) at approximately 9:30 p.m., inmate Pinkney, Terrence 914141, P-663, was stabbed on the face, and neck (right side) by an object which he believed to be a makeshift blade. Upon investigation inmate Lee, R. 80B0756 was identified as the person who inflicted the wound.

 Plaintiff's Exhibit A; Defendants' Exhibit D.

 On June 10, 1992, in an Unusual Incident Report signed by Superintendent John Keane, the assault on inmate Pinkney was described as follows:


while returning from HBA inmate Pinkney was attacked by 3 unknown inmates. A struggle incurred [sic] and inmate Pinkney received a 5" inch laceration on the right side of his face. Area search conducted, no contraband found.

 Plaintiff's Exhibit E; Defendants' Exhibit E.

 On June 11, 1992, plaintiff was given a form entitled "Sing Sing Correctional Facility Assistance Sheet" (hereinafter "assistance sheet") by Officer C. Hill which informed him of his right to select an employee assistant from a list established by the facility pursuant to N.Y. Comp. Codes R. & Regs. tit. 7, § 251-4.1, 4.2 (1989) (hereinafter "7 NYCRR"). Plaintiff's Exhibit B, Defendants' 3(g) Statement, P 9. As directed by the assistance sheet, plaintiff selected three people in the following order of preference: 1) G. Davis 2) R. Sweeney 3) S. Goldberg.

 On June 13, 1992, Sergeant Kelly, who was not designated by plaintiff on the assistance sheet, was assigned to aid inmate Lee. On that date, Sergeant Kelly visited plaintiff who was confined to his cell. She wrote on the assistance sheet "Inmate Lee would prefer to see one of the assistants he chose" and on the line where the inmate would ordinarily sign she wrote "refused to sign". Plaintiff's Exhibit B; Defendants' Exhibit F. There is no indication in the record that Sergeant Kelly did anything more to assist plaintiff to prepare his defense to the charges against him.

 A Tier III disciplinary hearing was convened by Hearing Officer Mahoney to consider the violations alleged in the Misbehavior Report. In the New York Prison System, Tier III disciplinary hearings, also known as Superintendent's hearings, are used for the review of the most serious violations of institutional rules. 7 NYCRR § 270.3 (1989). Plaintiff's disciplinary hearing commenced June 15, 1992 and concluded on July 9, 1992. Six (6) hearing days were held in this time period. See footnote 10 supra.

 After the conclusion of the hearing, Mahoney found the plaintiff guilty and sentenced him to two years in a Special Housing Unit (hereinafter SHU), *fn3" as well as two years loss of packages, commissary and phone privileges. "Confinement in the SHU is a form of solitary imprisonment. In addition to being separated from the general prison population, SHU inmates are limited in the prison issue items and personal belongings they may possess... . Also limited are shower and exercise privileges." Walker v. Bates, 23 F.3d 652, 655 (2d Cir. 1994), cert. denied, U.S. , 132 L. Ed. 2d 852, 115 S. Ct. 2608 (1995) (citations omitted).

 Plaintiff alleges that Mahoney violated his constitutional rights under the Due Process Clauses of the Fifth and Fourteenth Amendments by denying him his right to an assistant to aid him in preparing for his hearing. Furthermore, plaintiff alleges that defendant Mahoney was not an impartial hearing officer and that there was insufficient evidence to support Mahoney's determination of plaintiff's guilt. On July 10, 1992, plaintiff filed an administrative appeal of defendant Mahoney's determination. On September 3, 1992, defendant Coughlin affirmed the disposition of plaintiff's disciplinary hearing. *fn4" Plaintiff claims that Coughlin improperly affirmed the constitutionally infirm determination against him.

 On December 22, 1992, plaintiff filed an Article 78 action *fn5" in New York State Supreme Court, Westchester County. By Order dated May 21, 1993, Justice James R. Cowhey found that:


the conflicting evidence coupled with denial of petitioner's right to meaningful assistance, both prior to and throughout the hearing, requires a reversal of the finding of guilt to the assault charge. The Hearing Officer's disposition, as affirmed by respondent, was two years' confinement in a Special Housing Unit (SHU); two years loss of packages, commissary and phones (the period to run from June 9, 1992 through June 9, 1994). Under all these circumstances the determination of guilt and imposition of penalty thereon is annulled in all respects and respondent is directed to expunge all reference to this matter from the records. The Court determines that a new hearing would not be appropriate under all the facts herein.

 Plaintiff's Exhibit H, p. 6.

 Plaintiff was released from SHU in Southport Correctional Facility on June 21, 1993, after having served 376 days in segregation. Plaintiff's Affidavit in Support of Motion for Summary Judgment, p. 3, P 23. As a result of the state court's decision on plaintiff's Article 78 proceeding, all of plaintiff's records containing references to the disciplinary charges were expunged. Defendant's Exhibit P. Plaintiff's instant action seeks monetary damages for defendants' alleged violations of his civil rights.


 Summary judgment may not be granted unless the submissions of the parties taken together "show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Allen v. Coughlin, 64 F.3d 77, 1995 U.S. App. LEXIS 24144, 1995 WL 502891, *2 (2d Cir. 1995). It is the moving party who bears the "initial responsibility of informing the court of the basis for its motion, and identifying those portions of the pleading, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact. Federal Deposit Ins. Corp. v. Giammettei, 34 F.3d 51, 54 (2d Cir. 1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)).

 Once a moving party has provided sufficient evidence to support a motion for summary judgment, the opposing party must "set forth specific facts showing that there is a genuine issue for trial," and cannot rest on "mere allegations or denials" of the facts asserted by the movant. Rule 56(e), Fed.R.Civ.P.; accord, Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994).

 When deciding a motion for summary judgment, this Court must "view the evidence in a light most favorable to the non-moving party and draw all reasonable inferences in its favor." American Casualty Co. of Reading. PA v. Nordic Leasing, Inc., 42 F.3d 725, 728 (2d Cir. 1994). Where, as here, a party is proceeding pro se, this Court has an obligation to "read [the pro se party's] supporting papers liberally, and ... interpret them to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994); accord, Soto v. Walker, 44 F.3d 169 (2d Cir. 1995). However, a pro se party's "bald assertion," completely unsupported by evidence, is not sufficient to overcome a motion for summary judgment. Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991). To overcome a motion for summary judgment, the non-moving party must provide this Court with some basis to believe that his "version of relevant events is not fanciful." Christian Dior-New York. Inc. v. Koret, Inc., 792 F.2d 34, 37-39 (2d Cir. 1986); Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986) (a non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts.") Thus, in determining whether to grant summary judgment, this Court must determine (i) whether a factual dispute exists based on evidence in the record, and (ii) whether, based on the substantive law at issue, the disputed fact(s) are material.

 In submitting their respective motions, both plaintiff and defendants rely essentially upon the record of the administrative proceeding and appeal. In fact, outside of an attorney affidavit, defendants have submitted no affidavits based on personal knowledge. Hence, there are no material issues of fact in dispute and I render judgment on the application of the substantive law to the facts and documents in the record.


 In June of this year, the United States Supreme Court decided Sandin v. Conner, U.S. , 132 L. Ed. 2d 418, 115 S. Ct. 2293 (1995). The Sandin Court reconfigured the analysis for determining whether a prisoner subjected to disciplinary confinement has a protected liberty interest entitling him or her to the procedural protections afforded under the Due Process Clause. In so doing, the Court rejected the analysis established by Hewitt v. Helms and its progeny, returning to the due process principles established in Wolff v. McDonnell, 418 U.S. 539, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974) and Meachum v. Fano, 427 U.S. 215, 216, 49 L. Ed. 2d 451, 96 S. Ct. 2532, reh'g denied, 429 U.S. 873, 50 L. Ed. 2d 155, 97 S. Ct. 191 (1976). *fn6"

  Insisting that protected liberty interests be of "real substance," the Sandin Court limited state-created liberties 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, 115 S. Ct. at 2300.

 Because Sandin clearly applies to the instant case -- which stands or falls on whether defendants infringed upon plaintiff's liberty interest protected by due process -- the merits of plaintiff's claims must be evaluated.

 A. LIABILITY UNDER 42 U.S.C. § 1983

 The purpose of 42 U.S.C. § 1983 is "to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights, and to provide relief to victims if such deterrence fails." Wyatt v. Cole, 504 U.S. 158, 161, 118 L. Ed. 2d 504, 112 S. Ct. 1827 (1992). Section 1983 provides a cause of action against any person who, acting under the color of state law, infringes on a person's rights secured by the Constitution or the laws of the United States. 42 U.S.C. § 1983. In this case, defendants act under color of state law in their positions as employees of the New York State Department of Correctional Services (NYSDOCS). The threshold question is whether defendants' actions deprived plaintiff of his "rights, privileges, or immunities" and if so, are defendants entitled to qualified immunity from plaintiff's suit. Siegert v. Gilley, 500 U.S. 226, 111 S. Ct. 1789, 114 L. Ed. 2d 277 (1991) (prior to resolving the issue of whether a defendant has properly asserted a qualified immunity defense, a court must determine whether the plaintiff has asserted a violation of a constitutional right.)

 Plaintiff alleges that defendants violated his rights in several ways. First, he alleges that his due process rights were violated by defendant Mahoney's denial of his right to an assistant to aid him in preparing for his hearing. Second, plaintiff maintains that he was denied his right to proceed before an impartial official. Finally, plaintiff claims that defendant Coughlin violated his rights by affirming the unconstitutional determination made by defendant Mahoney.


 Liberty interests protected by the Due Process Clause may arise from either the Due Process Clause itself or from the laws of the states. Sandin, U.S. , 115 S. Ct. 2293, 2300 (1995). Plaintiff cannot assert a liberty interest as established under the Due Process Clause itself because in a prison context, such interest will generally arise only where a prisoner is to be involuntarily transferred to confinement which is "'qualitatively different' from the punishment characteristically suffered by a person convicted of a crime and results in 'stigmatizing consequences.'" Id. at 2997, fn. 4 (citing to Vitek v. Jones, 445 U.S. 480, 63 L. Ed. 2d 552, 100 S. Ct. 1254 (1980) (involuntarily transfer to psychiatric hospital); Washington v. Harper, 494 U.S. 210, 108 L. Ed. 2d 178, 110 S. Ct. 1028 (1990) (forced consumption of psychotropic medication against prisoner's will)). Thus, plaintiff's alleged liberty interest is protected by due process only to the extent that it arises under the laws of New York State and infringes upon his expected terms of confinement.

 The evaluation of due process under state law requires a determination of whether (1) the state statutes or regulations at issue narrowly restrict the power of prison officials to impose the deprivation -- giving the inmate the right to avoid it -- and (2) the liberty in question is one of "real substance". Sandin, 115 S. Ct. at 2298. Because it is undisputed that the state regulations at issue here narrowly restricted defendants' right to impose a disciplinary sentence on the plaintiff, *fn7" my inquiry must determine whether the liberty interest alleged to have been violated was one of "real substance," e.g. freedom from state action that will "inevitably affect the duration of [a] sentence," or restraint that imposes "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." *fn8" Id. at 2300.

 The Sandin Court found that 30 days of disciplinary segregation was "within the range of confinement to be normally expected for one serving an indeterminate term of 30 years to life" in a maximum security prison. Thus, Mr. Sandin's disciplinary sentence was held not to be "atypical and significant" Id. at 2301. Where an inmate served a substantial portion of a disciplinary sentence in SHU before a successful appeal, however, the Second Circuit has previously recognized that such sentences might constitute compensable deprivations of a liberty interest. Walker v. Bates, 23 F.3d 652, 658-59 (2d Cir. 1994), cert. denied, U.S. , 132 L. Ed. 2d 852, 115 S. Ct. 2608 (1995). Walker had served 73 days of a 120 day sentence of confinement.

 In the instant case, plaintiff served over one year of a two year sentence in SHU before his release. In relation to the ordinary incidents of prison life, I find that plaintiff Lee's confinement for 376 days in SHU imposed an atypical and significant hardship on plaintiff. *fn9" Thus, plaintiff has sufficiently alleged a liberty interest, even under the new light of Sandin.


 Where a prisoner establishes a protected liberty interest of real substance, he is entitled to the procedural protections as set forth by the Supreme Court in Wolff v. McDonnell, 418 U.S. 539, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974). Wolff articulated the minimum procedures necessary to reach a "mutual accommodation between institutional needs and objectives and the provisions of the Constitution." Id.; accord, Sandin v. Conner, U.S. , 132 L. Ed. 2d 418, 115 S. Ct. 2293 (1995). This guarantees a prisoner's right to be given twenty-four hours notice of the charges against him, a written statement of the evidence relied on by the fact-finder in the hearing, and the reasons for the disciplinary action taken by the hearing officer. Wolff at 563-65.

 In Wolff, the Supreme Court indicated that in certain circumstances, inmates subject to disciplinary charges have the right to assistance in preparing their defense. When an inmate is placed in restrictive confinement, the Second Circuit has held that the Fourteenth Amendment requires that the prison provide the inmate with assistance in obtaining evidence and interviewing witnesses. Eng v. Coughlin, 858 F.2d 889, 897-98 (2d Cir. 1988).


 Defendants claim that Sergeant Kelly offered assistance to plaintiff on June 13, 1992, but that plaintiff refused to cooperate. Sergeant Kelly wrote on the assistance sheet that "inmate Lee would prefer to see one of the assistants he chose" and that he "refused to sign" the assistance sheet. Defendants maintain that Sergeant Kelly was assigned so that they could hold plaintiff's hearing expeditiously in that the three assistants selected by plaintiff were not immediately available. See Defendant's Exhibit F ("Note- all three chosen don't work weekends- assistance was attempted on 6/12/92. Inmate Lee was on a visit 6/12 - Fri - 7 day limitation required other assistant be assigned - Hearing Officer J. Mahoney - Lee, R so advised on the tape. JM"). However, plaintiff's six (6) hearing days n10 were conducted over the course of 25 days and there is nothing in the record to suggest that all three of plaintiff's selected assistants were unavailable for the entire time. Plaintiff's Affidavit, P 15; Hearing Transcript 7/8/92, Defendants' Exhibit G. n10 Plaintiff's disciplinary hearing was conducted as follows: 6/15/92 10:10 - 10:18 6/18/92 8:40 - 8:49 6/22/92 2:29 - 2:45 6/24/92 12:36 - 12:44 and 3:21 - 3:41 7/8/92 3:17 - 3:30 7/9/92 3:11 - 3:27 and 3:57 (disposition read into record)


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