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SCOTT v. COUGHLIN

October 23, 1996

HAROLD SCOTT, Plaintiff, against THOMAS A. COUGHLIN, III, Commissioner, Department of Correctional Services; CHARLES J. SCULLY, Superintendent, Green Haven Correctional Facility; R. SEITZ, Deputy Superintendent; C.R. WINCH, First Deputy Superintendent; J. TANNER, Correctional Captain; S. ALBURY, Correctional Sergeant; J.A. WILCOX, Correctional Officer; GORDON LaBONTE, Correctional Officer; K. ERICKSON, Correctional Officer; J.R. NOVAK, Correctional Officer; N.K. HOWE, N.Y.S. Police Investigator; and DONALD SELSKY, Director, Department of Correctional Services Special Housing/Inmate Disciplinary Program, Defendants.


The opinion of the court was delivered by: WARD

 WARD, District Judge.

 Defendants Thomas A. Coughlin, III, Charles J. Scully, Robert Seitz, Charles R. Winch, Joseph Tanner, Stephen Albury, Gordon LaBonte, John R. Novak and Nelson K. Howe ("defendants") have moved for an order pursuant to Rule 56(b), Fed. R. Civ. P., granting summary judgment on the grounds that there are no material facts in dispute and that defendants are entitled to judgment as a matter of law. Additionally, defendants have moved, pursuant to Rule 15(a), Fed. R. Civ. P., for an order granting leave to amend their answer to include the defense of collateral estoppel. Plaintiff Harold Scott ("Scott") has filed a cross-motion pursuant to Rule 56(a), Fed. R. Civ. P., for an order granting partial summary judgment. Scott has also moved for an order pursuant to Rule 15, Fed. R. Civ. P., granting leave to amend his complaint to add the Director of the New York State Department of Correctional Services ("DOCS") Special Housing/Inmate Disciplinary Program, Donald Selsky ("Selsky"), as a defendant. For the reasons hereinafter stated, plaintiff's motion to amend is granted, defendants' motion for summary judgment is granted, defendants' motion to amend is denied, and plaintiff's motion for summary judgment is denied.

 BACKGROUND

 Scott is an inmate presently incarcerated at Green Haven Correctional Facility ("Green Haven"). On or about November 7, 1986, Correction Officer John R. Novak ("Novak") searched Scott's cell during a block-wide frisk and allegedly found a six-inch sharpened shank, or homemade knife, in one of the legs of Scott's bed. As a result, Scott was served with a misbehavior report signed by Novak charging him with possession of a weapon in violation of DOCS Inmate Rule 113.10, which prohibits inmates from making, possessing, selling, or exchanging any item of contraband that may be classified as a weapon by description, use, or appearance.

 On or about November 13, 1986, Deputy Superintendent Patrick McGann ("McGann") conducted a Tier III disciplinary hearing ("the McGann hearing") regarding the shank charges against Scott. At the hearing, Scott pleaded not guilty to the shank charges, and requested the production of the shank, which he alleges never to have seen, and the cell-search logbook. McGann declined to rule on Scott's requests, but instead found Scott guilty of the weapon possession charge and sentenced him to 45 days in keeplock confinement.

 Scott appealed McGann's ruling to Thomas A. Coughlin, III ("Coughlin"), the Commissioner of DOCS. Selsky, who reviewed inmate disciplinary appeals to the Commissioner's office, affirmed McGann's disposition. Scott thereafter filed an uncontested Article 78 petition in New York State Supreme Court. The court granted Scott's petition and directed defendants to expunge the incident from Scott's record. See In the Matter of the Application of Harold Scott, No. 87-3428, Decision and Order, at 1-2 (N.Y. Sup. Ct. Jan. 29, 1988).

 Following the McGann hearing, Nelson K. Howe ("Howe"), a New York State police investigator who had questioned Novak about his alleged discovery of the shank, signed felony complaints charging Scott with criminal possession of a weapon in the third degree. On or about January 22, 1987, Scott was summoned to Beekman Town Justice Court ("Beekman Court") on the felony charges. According to Scott, he did not know until that day that he was to be arraigned on criminal charges. Scott resisted attempts by correction officers to produce him before the court without a written court order, allegedly because he believed that, without such an order, he was not obligated to enter the courtroom. Ultimately, correction officers handcuffed Scott and brought him into the courtroom. As a result of his refusal to enter the courtroom without restraints, Scott was served with a misbehavior report signed by Correction Officer Gordon LaBonte ("LaBonte") charging him with refusing a direct order, interference, and verbal harassment.

 On or about January 28, 1987, Correctional Captain Joseph Tanner ("Tanner") conducted a Tier III disciplinary hearing ("the Tanner hearing") regarding the misbehavior report. LaBonte testified that he had witnessed Scott violate Sergeant Stephen Albury's ("Albury") direct order that he enter the courtroom. Tanner then adjourned the hearing in order to obtain testimony from Albury. Before the hearing was adjourned, Scott requested that Tanner obtain testimony from both the lawyer who represented him at the Beekman Court proceeding and the judge before whom the Beekman Court proceeding took place. Tanner denied Scott's request when the hearing resumed on February 2, 1987, stating that, because neither the lawyer nor the judge had "witnessed the misbehavior nor had knowledge of state rules," their testimony was irrelevant. Tanner Hearing Record, at 11.

 Scott appealed Tanner's ruling to Coughlin. Selsky, on behalf of Coughlin, denied Scott's appeal. Thereafter, Scott filed an Article 78 petition in New York State Supreme Court. The court dismissed the petition for failure to state a claim, finding that Scott was not entitled to disobey a direct order by a correction officer whether or not that order was proper. Consequently, the court declined to review Scott's procedural due process claims, finding that such claims were academic. See In the Matter of the Application of Harold Scott, No. 87-3428, Decision and Order, at 1-2 (N.Y. Sup. Ct. Mar. 1, 1988).

 On or about February 22 and 23, 1988, Scott was tried before a jury in the Beekman Court on the criminal charges arising from the shank incident. The trial ended in a mistrial, and the charges were dismissed.

 On January 22, 1990, Scott filed the present action pro se under 42 U.S.C. §§ 1983 and 1985, charging defendants with violating his rights under the Fourteenth Amendment. On July 25, 1990, this Court granted defendants' motion to dismiss as to plaintiff's five claims concerning defendants' failure to secure a court order prior to producing him in court. Then, on March 19, 1991, this Court granted defendants' first summary judgment motion as to those portions of plaintiff's claims concerning the denial of Scott's requests to present evidence at the Tanner hearing. The remaining claims in this action allege: (1) that Tanner infringed upon Scott's due process rights by failing to provide a fair and impartial hearing, denying his right to call witnesses, and failing to provide witness denial forms; (2) that Coughlin and Superintendent Charles J. Scully ("Scully") have supervisory liability for the infringement of Scott's rights by Tanner; (3) that Tanner, Scully, Coughlin, Deputy Superintendent Robert Seitz ("Seitz"), First Deputy Superintendent Charles R. Winch ("Winch"), Albury, and LaBonte harassed Scott in retaliation for the assertion of his due process rights; and (4) that Scully has supervisory liability for McGann's denial of Scott's right to present documentary evidence.

 Defendants now request summary judgment in their favor on all of the remaining claims. In addition, defendants seek to amend their answer to include collateral estoppel as a defense to the claims regarding due process violations alleged to have taken place at the Tanner hearing. Scott requests summary judgment in his favor on the claims alleging that Tanner infringed upon his due process rights. Finally, Scott wishes to amend his complaint to add Selsky as a defendant for his role in failing to remedy the alleged due process violations at both the Tanner and McGann hearings.

 DISCUSSION

 First, this Court will address Scott's motion to amend his complaint to add Selsky as a defendant. This Court then will consider defendants' motion for summary judgment. Finally, this ...


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