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December 3, 1996

WILLIE HORNE, Plaintiff,
THOMAS A. COUGHLIN, III, et al., Defendants.

The opinion of the court was delivered by: SMITH

 By Order dated June 14, 1994, this civil rights action, brought pursuant to 42 U.S.C. § 1983, was referred to the undersigned by the Honorable Neal P. McCurn, Senior Judge, for all further proceedings and the entry of final judgment upon the consent of the parties and in accordance with the provisions of 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73.

 At all times relevant herein, plaintiff was an inmate in Eastern Correctional Facility ("Eastern"), a New York State prison, defendant Coughlin was the Commissioner of the New York State Department of Correctional Services ("DOCS"), defendant Selsky was the Director of Special Housing and Inmate Discipline for DOCS, defendant Coombe was the Superintendent of Eastern, defendant Demskie was a Captain at Eastern, and defendant Kracke was a Lieutenant at Eastern.

 A bench trial was held in this matter in April of 1995. At the conclusion of the trial, the court reserved decision pending the submission of post-trial briefs by the parties. In June of 1995, the Supreme Court handed down its decision in Sandin v. Conner, 132 L. Ed. 2d 418, 115 S. Ct. 2293. *fn1" The parties thereafter submitted extensive post-trial memoranda of law addressing, inter alia, their positions with regard to the applicability of Sandin to the instant case. This Memorandum-Decision and Order constitutes the court's findings of fact and conclusions of law pursuant to Fed. R. Civ. P. 52(a).

 Findings of Fact

 Plaintiff is functionally illiterate and has an intelligence level that is so low that he can be classified as mentally retarded. On December 13, 1984, plaintiff was issued an inmate misbehavior report charging him with several violations of prison rules. This misbehavior report resulted from an incident in which plaintiff, inter alia, asked a volunteer teacher at Eastern for a kiss. Plaintiff was thereafter confined to his cell and assigned an employee assistant in accordance with applicable regulations.

 In April of 1985, plaintiff brought an action in state court, pursuant to Article 78 of the New York Civil Practice Law and Rules, in which he sought (a) to have the results of the December 19, 1984 disciplinary hearing declared void, (b) to have all references to this hearing expunged from his records, and (c) to be restored to the same status that he enjoyed prior to the hearing. On May 1, 1985, presumably as a result of plaintiff's Article 78 proceeding, defendant Selsky administratively reversed plaintiff's disciplinary conviction "for procedural error." The notice accompanying this reversal stated that a rehearing should be conducted within 14 days of the receipt thereof. Furthermore, a memorandum from defendant Selsky to Robert Hoke, who had replaced defendant Coombe as Superintendent of Eastern, stated that plaintiff's disciplinary conviction had been reversed following a discussion with the Attorney General's Office, and that an employee assistant should be present at the rehearing.

 The misbehavior report was thereafter re-served on plaintiff, and plaintiff was assigned a new employee assistant. A rehearing was conducted by defendant Demskie on May 9, 1985. Plaintiff's employee assistant was present at this hearing. However, this individual did very little, if anything, to help plaintiff defend himself against the charges in the misbehavior report. Rather, he merely attempted to explain to plaintiff, who was clearly having great difficulty understanding the proceedings, what the hearing officer was saying. At the conclusion of the rehearing, plaintiff was again found guilty of the charges in the misbehavior report and sentenced to 300 days in SHU with loss of various privileges, and 300 days recommended loss of good time. Plaintiff again appealed his disciplinary conviction to defendant Selsky. On May 28, 1985, defendant Selsky again modified plaintiff's sentence, this time to 6 months in SHU with loss of various privileges, and 6 months recommended loss of good time.

 Thus, plaintiff ultimately spent 6 months in SHU as a result of the December 13, 1984 misbehavior report. In a letter dated November 22, 1985, the Attorney General's Office withdrew its opposition to plaintiff's Article 78 proceeding, which was still pending. As a result, the relief sought therein was granted and all references to the December 19, 1984 and May 9, 1985 disciplinary hearings were expunged from plaintiff's prison records. This action followed.

 Plaintiff's complaint, as amended, seeks to impose liability on defendants based upon a number of legal theories. However, in reality this case involves one issue only, which plaintiff's counsel succinctly stated in her opening statement: "This case involves the question of an illiterate and retarded prisoner's right to counsel substitute" at prison disciplinary hearings. See Trial Transcript, at 9. *fn2" This due process issue has been the overwhelming, if not sole, focus of this 10-year old case, and will be the sole focus of this decision. *fn3"

 In Hewitt v. Helms, 459 U.S. 460, 466, 74 L. Ed. 2d 675, 103 S. Ct. 864 (1983), the Supreme Court stated that "while no State may 'deprive any person of life, liberty, or property, without due process of law,' it is well settled that only a limited range of interests fall within this provision." According to the Court, "liberty interests protected by the Fourteenth Amendment may arise from two sources -- the Due Process Clause itself and the laws of the States." Id. The plaintiff in Hewitt claimed that inmates have a liberty interest protected by the Due Process Clause "in being confined to a general population cell, rather than the more austere and restrictive administrative segregation quarters." Id. at 466-67. The Supreme Court disagreed, reasoning as follows:

We have repeatedly said both that prison officials have broad administrative and discretionary authority over the institutions they manage and that lawfully incarcerated persons retain only a narrow range of protected liberty interests. As to the first point, we have recognized that broad discretionary authority is necessary because the administration of a prison is "at best an extraordinarily difficult undertaking," and have concluded that "to hold . . . that any substantial deprivation imposed by prison authorities triggers the procedural protections of the Due Process Clause would subject to judicial review a wide spectrum of discretionary actions that traditionally have been the business of prison administrators rather than of the federal courts." As to the second point, our decisions have consistently refused to recognize more than the most ...

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