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.
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.
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 actions in placing [prisoner] there for 30 days did not work a major disruption in his environment.
Sandin may be read as "calling into question the continuing viability of our [Second Circuit] cases holding that New York regulations afford inmates a liberty interest in remaining free from administrative segregation." Rodriguez v. Phillips, 66 F.3d 470, 479 (2nd Cir. 1995). The Rodriguez opinion did not elaborate on this point however, and the Second Circuit has yet to discuss the Sandin decision in the context of disciplinary segregation.
Prior to the Sandin decision, the Second Circuit recognized that when "restrictive confinement within a prison is expressly imposed as a disciplinary sanction . . . there will ordinarily be no doubt that the confinement impaired a liberty interest protected by state law and that the due process procedures specified in Wolff are therefore required." Sher v. Coughlin, 739 F.2d 77, 81 (2d Cir. 1984) (citations omitted), affirmed in Walker v. Bates, 23 F.3d 652, 656 (2d Cir. 1994), cert. denied, 132 L. Ed. 2d 852, 115 S. Ct. 2608 (1995). The Second Circuit has also recognized that where an inmate served a substantial portion of a disciplinary sentence in the SHU before a successful appeal, such sentence constitutes compensable deprivation of a liberty interest. Walker, 23 F.3d at 656 (citing Patterson v. Coughlin, 761 F.2d 886, 893 (2d Cir. 1985), cert. denied, 474 U.S. 1100, 106 S. Ct. 879, 88 L. Ed. 2d 916 (1986)); see also McCann v. Coughlin, 698 F.2d 112, 121-22 (2d Cir. 1982) ("An inmate who is or may be sentenced to a term of confinement in a Special Housing Unit has a right to the procedural protections of the Due Process Clause," including the right to call witnesses in his defense).
In evaluating whether or not plaintiff Campo, who spent 61 days of disciplinary confinement in the SHU, suffered an atypical and significant hardship in comparison to the usual expectations of prison life at the Sing Sing Correctional Facility, this Court is faced with the difficult task of determining the extent to which the Supreme Court's decision in Sandin has overturned the longstanding Second Circuit rule that any imposition of disciplinary confinement requires constitutional due process protections. In light of Sandin, we must assess the disruption suffered by Campo in comparison with the environment faced by prisoners who are not subject to disciplinary segregation. Sandin, 115 S. Ct. at 2301.
The Second Circuit has previously characterized confinement in the SHU as a form of solitary confinement. Walker, 23 F.3d at 655. "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." Id. (citations omitted). Plaintiff argues that conditions for Sing Sing inmates confined to the SHU are much worse than those faced by the general population because they are denied important privileges. Specifically, plaintiff notes that while in the SHU: 1) he was allowed only one visit per week, instead of five; 2) he was unable to make any commissary purchases or receive packages, which resulted in his losing weight; 3) he was denied all access to the law library; 4) he was unable to attend classes; and 4) he missed the opportunity to enroll in the fall semester of college. Pl. Memorandum Dated August 2, 1995, PP 4-5.
Plaintiff also argues that he suffered particularly egregious hardship as a result of his confinement to the SHU. Plaintiff contends that he lost his job as a diet cook as a result of the entire incident. Id. P 3. More importantly, he alleges that he was prohibited from using the telephone while confined in the SHU, and as a consequence, he lost contact with his daughter during the time after her mother's death when she was almost placed in foster care. Id. P 4. This allegedly resulted in "permanent damage" to the relationship between plaintiff and his daughter. Id. P 6. Finally, plaintiff claims that his inability to use the telephone prevented him from retrieving certain valuables from brother's apartment. Id. P 7.
Under New York prison regulations, inmates can be placed in the SHU for disciplinary confinement, administrative reasons, protective custody, or as keeplock confinement. 7 N.Y.C.R.R. §§ 301.2-301.6. Defendants argue that plaintiff's confinement to the SHU does not constitute an "atypical and significant" deprivation of liberty under Sandin because the conditions imposed upon New York inmates confined to the SHU for disciplinary reasons are identical to those imposed on inmates who are confined to the SHU for administrative reasons. Def. Memorandum Dated August 21, 1995, at 6. Furthermore, defendants argue that the difference between conditions for SHU inmates and those of the general population is no greater than the difference that Sandin held insufficient to create a protected liberty interest. Id. at 7. In support of this position, defendants have produced a convincing affidavit from the Deputy Commissioner and Counsel for the New York State Department of Correctional Services that highlights the great amount of discretion given to the Superintendent of each facility regarding the confinement of inmates. Affidavit of Mr. Annuncio, Dated August 16, 1995 at 3.
Nevertheless, this case can be distinguished from Sandin because plaintiff Campo faced a more serious charge and a more serious potential sentence than did Sandin. In Sandin, the plaintiff received the maximum possible sentence, thirty days in punitive segregation, for an offense of "high" as opposed to "greatest" misconduct. Sandin, 115 S. Ct. at 2296 n.1. In contrast, Campo was sentenced to 365 days in the SHU (of which he served 61) at a Tier III disciplinary hearing, which is "used for the review of the most serious violations of institutional rules." Walker, 23 F.3d at 654. This distinction is of great importance in light of the recognized Second Circuit principle that due process rights must be determined with respect to the potential penalty. McKinnon v. Patterson, 568 F.2d 930, 939 (2d Cir. 1977), cert. denied, 434 U.S. 1087, 55 L. Ed. 2d 792, 98 S. Ct. 1282 (1978).
Because the Court of Appeals has yet to speak clearly on the impact of Sandin in this Circuit, and because summary judgment can be granted in this case on more solid precedent by assessing the issue of a violation of due process, this Court believes it more prudent not to rule on the Sandin issue directly. See Moore v. Selsky, 900 F. Supp. 670, 673 (S.D.N.Y. 1995).
We proceed on the assumption that Sandin does not bar from consideration allegations raising questions of material fact as to the deprivation of due process rights.
D. Due Process Violations
1. Defendant Pico
Plaintiff alleges that defendant Pico violated his procedural due process rights under the Fourteenth Amendment during the August 1992 disciplinary hearing. In particular, plaintiff claims that defendant Pico improperly refused to call witnesses requested by plaintiff, failed to examine confidential informants who were potential witnesses, denied plaintiff access to information received from confidential informants, and failed to conduct the disciplinary hearing in an impartial manner.
a. Failure to Call Witnesses
Although a New York inmate has a due process right to call witnesses, under N.Y.C.R.R. § 254.5(b), courts have held that this right is not absolute. See Ponte v. Real, 471 U.S. 491, 495, 85 L. Ed. 2d 553, 105 S. Ct. 2192 (1985); Wolff, 418 U.S. at 566 (1974). A prisoner's right to call witnesses is available only "when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals." Wolff, 418 U.S. at 566. Prison officials must be accorded the discretion necessary to keep a hearing within reasonable limits and to refuse to call witnesses when summoning them may create a risk of reprisal or undermine authority. Id. A hearing officer may also refuse to call a witness "on the basis of irrelevance or lack of necessity." Kingsley v. Bureau of Prisons, 937 F.2d 26, 30 (2d Cir. 1991); see also Wolff, 418 U.S. at 566; Scott v. Kelly, 962 F.2d 145, 146-47 (2d Cir. 1992).
While a prison official must at some point explain the reasons for refusing to allow a prisoner to call a witness at a disciplinary hearing, that explanation need not be in writing, and need not be detailed.
Prison officials may be required to explain, in a limited manner, the reason why witnesses were not allowed to testify, but that they may do so either by making the explanation part of the "administrative record" in the disciplinary proceeding, or by presenting testimony in court if the deprivation of a "liberty" interest is challenged because of a claimed defect in the hearing. In other words, the prison officials may choose to explain their decision at the hearing, or they may choose to explain it "later."