128904, moreover, the court held that claims of retaliation could not be supported by (a) complaints filed by the inmate after the alleged retaliatory conduct; or (b) unrelated earlier litigation and complaints against corrections officers other than defendants.
In this case, the only record of a complaint filed by plaintiff prior to the incident was an Inmate Grievance Complaint filed on December 2, 1992 which did not concern any of the named defendants. In addition, defendant Hale, the corrections officer who wrote the misbehavior report that is the subject of this lawsuit, has declared under oath that he had no knowledge of any prior complaints by plaintiff. As in Montgomery, then, this single grievance filed by plaintiff which does not mention the defendants, and about which defendant Hale had no knowledge, is not a sufficient basis to create a claim for retaliation.
As to the removal of plaintiff from his job as an electrician assistant, this action was taken as a result of the misbehavior report and resulting penalty. Since plaintiff has not established that the misbehavior report and subsequent keep-lock were in retaliation for his prior exercise of a constitutional right, he cannot establish as a matter of law that the removal from his prison job as a result of the report and penalty was retaliatory.
Plaintiff's second allegation also fails to overcome this motion for summary judgment. He claims that his disciplinary hearing fell short of the requirements of due process for three reasons: (a) defendant Hale was not called as a witness; (b) the hearing was completed in 15 minutes; and (c) plaintiff was found guilty of one charge, but not the other. We will address each argument briefly.
First, plaintiff did not request any witnesses at his disciplinary hearing, and specifically did not request that defendant Hale be called. Thus, he cannot complain now that the hearing officer's failure to call defendant Hale deprived plaintiff of due process. See Majid v. Henderson (N.D.N.Y. 1982) 533 F. Supp. 1257, 1273, aff'd (2d. Cir. 1982) 714 F.2d 115.
Furthermore, the fact that the hearing lasted only fifteen minutes does not render the hearing unconstitutional. Plaintiff does not deny that he was given a full opportunity to testify (Complaint P 20-23). Accordingly, the length of the hearing does not support a claim that plaintiff was denied due process.
Finally, the fact that the hearing officer, defendant Lt. McGovern, determined that plaintiff was guilty of one charge but not the other does not render the proceeding constitutionally infirm. The Second Circuit has stated that "a court should not overturn a prison disciplinary board's finding of guilt if there is any evidence to support the board's conclusion." Franco v. Kelly (2d. Cir. 1988) 854 F.2d 584, 588 (emphasis in original). In plaintiff's case, the misbehavior report, which specified plaintiff's conduct, provides appropriate evidence to support the hearing officer's finding of guilt on one charge. Plaintiff has failed to demonstrate how the fact that he was found not-guilty of the other charge violates his due process rights.
The Supreme Court has held that "lawfully incarcerated persons retain only a narrow range of protected liberty interests," and prison discipline is traditionally the business of prison administrators, not federal courts. Hewitt v. Helms (1983) 459 U.S. 460, 74 L. Ed. 2d 675, 103 S. Ct. 864. Because we find that plaintiff has failed to establish as a matter of law that his rights were violated, we grant defendants' motion for summary judgment.
New York, New York
November 1, 1995
WHITMAN KNAPP, SENIOR U.S.D.J.