A disciplinary hearing regarding the charges against plaintiff was conducted by defendant Kracke on December 19, 1984. Plaintiff's employee assistant was not present at this hearing. At the conclusion of the hearing, plaintiff was found guilty of the charges in the misbehavior report and sentenced to one year in the Eastern Special Housing Unit ("SHU"), and received a recommendation that he lose one year of "good time" credits. Plaintiff appealed his disciplinary conviction to defendant Selsky. On January 25, 1985, defendant Selsky modified plaintiff's sentence to 8 months in SHU and 8 months recommended loss of good time. The basis for this modification was defendant Selsky's belief that plaintiff's conduct, while serious, did not warrant the sentence imposed by defendant Kracke.
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.
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.
Conclusions of Law
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 basic liberty interests in prisoners. "Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system."
Id. at 467 (quotations omitted).
Thus, "'the Due Process Clause in and of itself'" does not protect an inmate from being transferred from one prison to another, even where the transfer involves such a "significant modification" in the inmate's conditions of confinement as to constitute a "'grievous loss.'" Id. at 468 (quotations omitted). Rather, "'as long as the conditions or degree of confinement to which the prisoner is subjected is within the sentence imposed upon him and is not otherwise violative of the Constitution, the Due Process Clause does not in itself subject an inmate's treatment by prison authorities to judicial oversight.'" Id. (quotation omitted).
Nonetheless, the Court held that States could create constitutionally protected liberty interests by enacting regulations that use "language of an unmistakably mandatory character, requiring that certain procedures 'shall,' 'will,' or 'must' be employed" before an inmate can be placed in more restrictive quarters. Id. at 471. Thus, Hewitt "shifted the focus of the liberty interest inquiry to one based on the language of a particular regulation, and not the nature of the deprivation." Sandin, 115 S. Ct. at 2299. "As this methodology took hold, no longer did inmates need to rely on a showing that they had suffered a '"'grievous loss'"' of liberty retained even after sentenced to terms of imprisonment." Id. at 2298 (quotation omitted). According to the Court:
Hewitt has produced at least two undesirable effects. First, it creates disincentives for States to codify prison management procedures in the interest of uniform treatment. . . . Second, the Hewitt approach has led to the involvement of federal courts in the day-to-day management of prisons, often squandering judicial resources with little offsetting benefit to anyone. In so doing, it has run counter to the view expressed in several of our cases that federal courts ought to afford appropriate deference and flexibility to state officials trying to manage a volatile environment.