urge the Court to conclude that no liberty interest arising under New York law was abrogated as a result of plaintiff's transfer to the Sing Sing Correctional Facility.
The defendants' contention is misplaced, however, insofar as it fails to view the allegations of the amended complaint in the light most favorable to the plaintiff. Specifically, the applicability of the aforementioned provisions concerning the appropriate treatment of absconders is premised upon the assumption that the plaintiff voluntarily failed to return to the Queensboro Correctional Facility. See N.Y. Correct. Law § 856(2) (requiring failure of inmate to return to the institution to be voluntary for rebuttable presumption of absconding to apply). This, however, was not the case here; according to the amended complaint, the plaintiff was involuntarily transported by two Queensboro correctional officers to the Sing Sing Correctional Facility. See Am. Compl. P 14. Plaintiff, therefore, did not voluntarily fail to return to Queensboro, and consequently may not be regarded as an absconder as a matter of law. As plaintiff's allegations concerning the involuntariness of his actions must be taken as true for purposes of the instant motion to dismiss, the presumption of absconding set forth in the Correction Law is irrelevant at this juncture of the litigation. Indeed, this conclusion is further reinforced by plaintiff's allegation that he notified both his parole officer and the captain with the Temporary Release Committee of his whereabouts immediately following his arrest and incarceration at Rikers Island. See id. P 11. Accordingly, the defendants' argument is without merit.
The defendants next assail the amended complaint's allegations that the plaintiff was deprived of a liberty interest without due process of law as a result of his confinement at Sing Sing Correctional Facility. The plaintiff alleges that while he was incarcerated at Sing Sing, he wrote letters seeking a hearing before the Temporary Release Committee: (i) on August 24, 1989 to DOCS and to the Director of the Temporary Release Committee at the Queensboro Correctional Facility; (ii) on September 9, 1989 to defendant Dunham; and (iii) on September 15, 1989 to Thomas A. Coughlin III, the Commissioner of DOCS. Despite these efforts, however, no hearing was scheduled. Indeed, a hearing was not finally scheduled until after the plaintiff filed an order to show cause in the New York State Supreme Court, dated October 3, 1989, seeking a hearing and reinstatement to the Work Release Program. See id. PP 16-18.
The defendants argue that no liberty interest was implicated by the delay in scheduling a temporary release hearing because the State regulations do not require a correctional facility to conduct such a hearing within a specified period of time. See 7 N.Y. Comp. Codes R. & Regs. § 1904.2. The parties do not dispute, however, that the regulations do provide that where an inmate is charged with a "disciplinary violation" such as absconding, a superintendent's hearing "must be completed within 14 days following the writing of the misbehavior report unless otherwise authorized by the commissioner or his designee." Id. § 251-5.1(b). According to the regulations, this hearing must take place before the Temporary Release Committee hearing, which then would resolve the issue of whether the prisoner should be permitted to remain in the Program. See id. § 1904.2(h).
The defendants assert that the amended complaint fails to allege that the plaintiff was charged with a disciplinary violation, and that therefore he was not entitled to a superintendent's hearing. A review of the amended complaint, however, reveals that Paragraph 19 alleges that the plaintiff was charged with absconding. Taking this allegation as true for purposes of the present motion to dismiss, the defendants' allegation that the plaintiff had no right to a hearing is untenable, and therefore the defendants' motion to dismiss the first cause of action must be denied.
B. Second Cause of Action: Hearing Conducted in Bad Faith
The defendants also move to dismiss the plaintiff's second cause of action. In his second claim for relief, the plaintiff alleges that his due process rights were abridged in connection with the hearing that belatedly was held before the Temporary Release Committee on October 11, 1989. Specifically, plaintiff claims that said hearing was conducted in bad faith in flagrant disregard of the Temporary Release Program's own rules and regulations. The defendants assert that the plaintiff was not deprived of due process in connection with this hearing, arguing that any procedural deficiency was cured upon administrative appeal, which resulted in plaintiff's restoration to the Work Release Program.
The defendants' argument is misplaced. The defendants cite two Second Circuit cases that stand for the proposition that, in disciplinary proceedings that do not result in the assessment of punishment pending administrative appeal, a due process violation will not occur where a procedural deficiency at a hearing has been rectified upon the administrative appeal. See Russell v. Scully, 15 F.3d 219, 222 (2d Cir. 1994) ("An inmate is not deprived of due process where an administrative appeal has cured a hearing's procedural defects."); Young v. Hoffman, 970 F.2d 1154, 1156 (2d Cir. 1992) (per curiam), cert. denied, 126 L. Ed. 2d 80, 114 S. Ct. 115 (1993). The defendants' analysis of the deprivation sustained by the plaintiff fails, however, to consider the Supreme Court's admonition that this Court "must look not to the 'weight' but to the 'nature' of the interest at stake." Roth, 408 U.S. at 571, 92 S. Ct. at 2706 (citing Morrissey, 408 U.S. at 481, 92 S. Ct. at 2600). With this principle as a guide, the cases cited by the defendants are clearly distinguishable from the case at bar, for neither involves a constitutional deprivation analogous to the removal of an inmate without notice from a Work Release Program. See Tracy, 572 F.2d at 397; see also Severino, 996 F.2d at 1442 ("It has been clear since Tracy that a liberty interest exists [in an inmate's continued participation] in a work release program."). Accordingly, the defendants' motion to dismiss the second cause of action likewise must be denied.
In accordance with the foregoing, the defendants' motion to dismiss the plaintiff's amended complaint is DENIED in its entirety.
Joanna Seybert, U.S.D.J.
Dated: Uniondale, New York
October 8, 1995
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