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February 6, 1996

MARIO CAMPO, Plaintiff, pro se against JOHN P. KEANE, Superintendent, J. PICO, Civilian, Sing Sing Correctional Facility, Defendants.

The opinion of the court was delivered by: SAND



 Plaintiff Mario Campo, pro se, brings this action pursuant to 42 U.S.C. § 1983 against Superintendent John P. Keane, Corrections Officer Jose Pico, and the Sing Sing Correctional Facility. Plaintiff alleges a violation of his procedural due process rights during a prison disciplinary hearing. Defendants move for summary judgment. *fn1" For the reasons set forth below, the Court grants defendants' motion with respect to all claims.



 Plaintiff Mario Campo ("Campo") is an inmate incarcerated in the Sing Sing Correctional Facility. On July 31, 1992, Corrections Officer Burgess filed an Inmate Misbehavior Report (the "Report") against plaintiff. The Report charged plaintiff with a violation of facility rule 113.10, which prohibits the possession of a weapon.

 According to this Report, Ex. A to Buchbinder Affidavit dated November 11, 1993, plaintiff concealed a homemade weapon beneath a plate of potatoes while he was on his food delivery rounds. Plaintiff was strip searched, and no other weapons were found. Thereafter, plaintiff was handcuffed and escorted to the Special Housing Unit ("SHU") to await a hearing on the charge.

 On August 4, 1992, defendant Hearing Officer Jose Pico ("Pico") commenced a Tier III disciplinary hearing to consider the alleged weapons violation. At the hearing, Campo contended that he was framed by an inmate named Walls who had planted the contraband on the tray and who had then told the officers to conduct the frisk. Hearing Transcript, Ex. A to Buchbinder Aff. Dated Dec. 20, 1993 ("Tr.") at 9. In order to prove his contention, plaintiff initially requested the testimony of six witnesses. Campo stated, however, that he did not wish to call inmate Walls as a witness. He later waived his original request to call as a witness another inmate, Manos. Id. at 7, 8, 10.

 As the hearing progressed, on three separate occasions plaintiff requested additional witnesses. Id. at 19, 29-30, and 36. Defendant Pico allowed the testimony of all the requested witnesses except one, Officer Pundt ("Pundt"). Hearing Record Sheet, Ex. A to Buchbinder Aff. Dated Dec. 27, 1994. Defendant Pico explained that he denied plaintiff's request to call Pundt because Pundt lacked personal knowledge of the events surrounding the alleged disciplinary violation, and any testimony he could offer on related matters would be redundant. Id. at 60.

 During the hearing, plaintiff also requested to speak to, or for defendant Pico to interview, the officers' confidential informants. Id. at 31-32. Their testimony was sought concerning the frisk. Pico assured plaintiff that he was "dealing with the confidential sources." Id. Pico later stated, however, that he had no access to confidential information. Id. at 64.

 On August 18, 1992, after the completion of all testimony, defendant Pico found plaintiff guilty of the charged violation. Pico based his disposition on the conclusion that plaintiff had lacked authorization to be on the cell block where he had been stopped with the food tray and that Campo's unauthorized presence itself constituted more than probable cause to conduct the frisk. Id. Campo, however, disputed this justification, maintaining that as a food server, he had "access to the entire institution." Id. at 61. Pico imposed a penalty of 365 days in the SHU, inclusive of the time already served. In addition, he suspended plaintiff's package, commissary, and telephone privileges and imposed a disciplinary surcharge of five dollars on plaintiff's account. Id. at 63.

 That same day, August 18, plaintiff appealed Pico's decision to the Commissioner of the Department of Correctional Services Thomas Coughlin (not a defendant herein). On September 22, 1992, after a discretionary review, defendant Superintendent John Keane ("Keane") reversed Pico's ruling. Keane determined that the contraband had been planted on the plaintiff, who was completely unaware of its presence. Ex. to Pl. Aff. Dated December 14, 1993. According to plaintiff, he was not removed from the SHU until September 29, 1992; Campo's time in the SHU thus totalled 61 days. *fn2" Pl. Aff. Dated Sept. 25, 1995, at 1.

 Plaintiff now brings this action pursuant to 42 U.S.C. § 1983 alleging that his procedural due process rights were violated during the August 1992 disciplinary hearing. In particular, Campo alleges that defendant Pico violated his rights by refusing to call witnesses requested by plaintiff, by denying plaintiff access to information received from confidential informants, and by failing to conduct the hearing in an impartial manner. Complaint P 4. Plaintiff alleges that defendant Keane was grossly negligent in his supervision of defendant Pico. *fn3"


 A. Standard for Summary Judgment

 Summary judgment is appropriate where the moving papers and affidavits submitted by the parties "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." Fed. R. Civ. p. 56(c). The court's role is not to resolve disputed factual issues, but rather to determine whether the record, taken as a whole, supports any issues that require a trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). Used properly, Rule 56 is a "vital procedural tool to avoid wasteful trials," Capital Imaging v. Mohawk Valley Medical Assocs., 996 F.2d 537, 542 (2d Cir. 1993), and "to isolate and dispose of factually unsupported claims." Celotex, 477 U.S. at 323-24.

 The court must view the evidence in the light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970); Garza v. Marine Transport Lines, Inc., 861 F.2d 23, 26 (2d Cir. 1988). Where, as in this case, a plaintiff submits the complaint pro se, the complaint must be liberally construed. See Haines v. Kerner, 404 U.S. 519, 520, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972); Platsky v. CIA, 953 F.2d 26, 28 (2d Cir. 1991). Thus the allegations found in Campo's complaint, "'however inartfully pleaded,' are held 'to less stringent standards than formal pleadings drafted by lawyers.'" Hughes v. Rowe, 449 U.S. 5, 9, 66 L. Ed. 2d 163, 101 S. Ct. 173 (1980) (quoting Haines, 404 U.S. at 520).

 The moving party bears the initial burden of establishing the absence of a genuine issue as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). However, if the non-moving party would bear the burden of proof on a claim at trial -- as plaintiff would in this case -- the moving party may satisfy its burden by demonstrating an absence of evidence to support an essential element of the claim. Id. at 325. To defeat the motion, the non-moving party must "do more than show that there is some metaphysical doubt as to the material facts," Matsushita, 475 U.S. at 586, but instead must point to evidence sufficient to establish each element of its case, Celotex Corp., 477 U.S. at 322 -- evidence, that is, such that a reasonable jury could return a verdict for the non-moving party on that element. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 91 L. Ed. 2d 202, 106 S. Ct. 2505; Burke v. Jacoby, 981 F.2d 1372, 1379 (2d Cir. 1992), cert. denied, 508 U.S. 909, 124 L. Ed. 2d 249, 113 S. Ct. 2338 (1993).

 B. Legal Standard for Liability under 42 U.S.C. § 1983

 When Congress passed 12 U.S.C. § 1983, it created a civil cause of action against any person who, acting pursuant to state government authority or under the color of state law, abridges rights secured by the United States Constitution or by federal law. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 924, 73 L. Ed. 2d 482, 102 S. Ct. 2744 (1982). In order to prevail on a claim under § 1983, a plaintiff must prove that the defendant(s): (1) acted; (2) "under color of state law;" and (3) in a manner that deprived the plaintiff of "any rights, privileges, or immunities secured by the Constitution." 12 U.S.C. § 1983. See Parratt v. Taylor, 451 U.S. 527, 535, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981), overruled in part on other grounds by Daniels v. Williams, 474 U.S. 327, 330-31, 88 L. Ed. 2d 662, 106 S. Ct. 662 (1986).

 It is unquestioned that the authorized actions of defendants Pico and Keane, both employees of the New York state prison system, arise under color of state law. Therefore, the question in this case is whether the defendants acted in a manner that deprived plaintiff Campo of any rights, privileges, or immunities secured by the Constitution.

 C. The Protected Liberty Interest under Sandin

 Before evaluating plaintiff's claims regarding defendants' conduct at the disciplinary hearing, the Court must first determine whether or not Campo has asserted a violation of a protected liberty interest. If Campo was not deprived of a protected liberty interest, his cause of action must be dismissed whether or not defendants failed to conduct his disciplinary hearing in accordance with required procedures.

 In a recent case that reexamined how state prison regulations can create protected liberty interests, the Supreme Court held that while states may create liberty interests protected by the Due Process Clause, such state-created liberties are 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, ... nevertheless impose atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.

 Sandin v. Conner, 132 L. Ed. 2d 418, 115 S. Ct. 2293, 2300 (1995) (citations omitted). In so holding, the Supreme Court reaffirmed a longstanding principle that "lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights," Wolff v. McDonnell, 418 U.S. 539, 555, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974).

 The inmate plaintiff in Sandin alleged a violation of due process under 42 U.S.C. § 1983. The alleged violation occurred at a hearing where plaintiff was sentenced to thirty-day disciplinary segregation in the Special Holding Unit of a Hawaii prison for "high misconduct." Sandin, 115 S. Ct. at 2296. The Supreme Court found that the thirty-day segregation sentence was "within the range of confinement to be normally expected for one serving a indeterminate term of 30 years to life" in a maximum security prison, and, therefore, was not an "atypical and significant deprivation in which a state might conceivably create a liberty interest." Id. at 2301. In so holding, the Court relied on the record's showing that:

disciplinary segregation, with insignificant exceptions, mirrored those conditions imposed upon inmates in administrative segregation and protective custody...thus [plaintiff's] confinement did not exceed similar, but totally discretionary confinement in either duration or degree. Based on a comparison between inmates inside and outside disciplinary segregation, the State's ...

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