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February 7, 1997

CARLOS CESPEDES, Plaintiff, against THOMAS A. COUGHLIN, III, Commissioner of New York State Department of Correctional Services; JOHN P. KEANE, Superintendent; CHARLES GREINER, Deputy Superintendent of Security; F. ORENGO, Captain; JOHN DOE, Captain; M. STOKES, Lieutenant; SGT. FIELDS, Sergeant; SGT. ALBELO, Sergeant; and J. ROMAN, Correctional Officer, Defendants.

The opinion of the court was delivered by: EDELSTEIN

 Edelstein, District Judge :

 In April 1990, plaintiff Carlos Cespedes ("Cespedes" or "plaintiff"), an inmate at the Ossining Correctional Facility ("Sing Sing"), in Ossining, New York, brought this action against the above-named defendants, alleging that, while incarcerated at Sing Sing, he was placed into segregated housing without due process in violation of Title 42, United States Code, Section 1983 ("Section 1983"), as well as several unspecified state law claims. Presently before this Court are plaintiff's objections to the recommendations of Magistrate Judge Sharon E. Grubin ("Magistrate Judge Grubin") regarding several pretrial motions. (Report and Recommendations to the Honorable David N. Edelstein, Cespedes v. Coughlin, 90 Civ. 2667 (the "Report") (July 21, 1995). Defendants did not respond to plaintiff's objections.


 This Court will first review the events giving rise to this litigation, then describe the findings and recommendations contained in Magistrate Judge Grubin's Report.

 I. Facts

 The events giving rise to the instant litigation occurred on February 18, 1989, in Sing Sing housing block A ("block A") (Memorandum of Law in Support of Plaintiff's Motion to Amend the Complaint and for Partial Summary Judgment and in Opposition to Defendants' Motion for Partial Summary Judgment, Cespedes v. Coughlin, 90 Civ. 2667 ("Pltf. Memo") at 3 (Oct. 27, 1992).) At that time, Cespedes was incarcerated in block A. (Memorandum of Law in Opposition to Plaintiff's Motion for a Preliminary Injunction, Cespedes v. Coughlin, 90 Civ. 2667 ("Dfts. PI Opp. Memo") at 3 (Oct. 11, 1990).)

 At approximately 5:00 p.m. on February 18, 1989, a prisoner was doused with hot oil while in his cell in block A. Id. ; (Defendants' Local Rule 3(g) Statement, Cespedes v. Coughlin, 90 Civ. 2667 ("Dfts. Rule 3(g) Stmt.") P 14 (Aug. 12, 1991).) Prison officials, including defendant Stokes, conducted an investigation of the incident and were told by a confidential informant that Cespedes had participated in the assault, possibly in conjunction with an undetermined number of other inmates. (Memorandum of Law in Support of Defendants' Motion for Summary Judgment, Cespedes v. Coughlin, 90 Civ. 2667 ("Dfts. SJ Memo") at 2 (Sept. 12, 1991)); (Pltf. Memo at 3); (Dfts. Rule 3(g) Stmt. P 15); (Affidavit of J. Fields in Support of Defendants' Partial Motion for Summary Judgment, Cespedes v. Coughlin, 90 Civ. 2667 ("Fields Aff.") P 6 (Aug. 14, 1991).) Based upon the confidential information, defendant J. Fields ("Fields") and other officials searched Cespedes' cell, and discovered a half-filled bottle of baby oil and a flammable spray. (Dfts. SJ Memo at 2); (Dfts. Rule 3(g) Stmt. P 17.)

 In light of the evidence against Cespedes, on February 18, 1989, Cespedes was charged with assault in a misbehavior report prepared by defendant Roman, a Corrections Officer. (Affidavit of Tigran Eldred, Cespedes v. Coughlin, 90 Civ. 2667 ("Eldred Aff.") at Exh. 1 (Oct. 23, 1992); (Pltf Memo at 3.) Fields then ordered Cespedes to be brought to Sing Sing's Special Housing Unit ("SHU") pending the commencement of disciplinary proceedings against him. (Pltf. Memo at 3.) According to regulations promulgated by the New York Department of Correctional Services (the "DOC"),

[a] special housing unit (SHU), in maximum security facilities as well as in designated medium security facilities, shall consist of single-occupancy cells grouped so as to provide separation from the general [prison] population, and may be used to house inmates confined to such units pursuant to Part 301 of this Title as well as other inmates as approved by the commissioner or his designee.

 N.Y. Comp. Codes R. & Regs. tit. 7, § 300.2 (1991) (emphasis in original). In addition to being separated from the general prison population, SHU inmates are limited in the prison-issue items and personal belongings which they may possess. Id. § 302.2. SHU prisoners are also limited in their shower and exercise privileges. McCann v. Coughlin, 698 F.2d 112, 117 n.5 (2d Cir. 1983).

 On February 20, 1989, a corrections officer served Cespedes with a copy of the misbehavior report accusing him the assault, (Defendants' Notice of Motion for Partial Summary Judgment, Cespedes v. Coughlin, 90 Civ. 2667 ("Dfts. Notice of Motion") at Exh. C (Aug. 12, 1991)), and on February 24, 1989, Cespedes received a Spanish translation of his misbehavior report. (Pltf Memo at 3.) While in SHU awaiting his hearing, Cespedes claims that he met with defendant Alvelo, "a Correction Sergeant who was appointed to assist [Cespedes] in preparation of his defense." Id. Cespedes contends that he asked Alvelo to "interview and obtain statements from numerous inmates who could provide exculpatory information about the incident, as well as from the correction officer who had issued [Cespedes'] misbehavior report." Id. at 4. Cespedes further requested that Alvelo "provide him with legal material, including books, that would explain the law relevant to [his] pending . . . hearing." Id. Cespedes maintains, however, that Alvelo "completely failed to assist [Cespedes] whatsoever, including failing to performing [sic] any of the requested tasks or to meet with [Cespedes] at any other time prior to the proceeding." Id.

 On February 24, 1989, Sing Sing's disciplinary secretary, A. Adell ("Adell"), wrote to the DOC's central office in Albany and requested an adjournment of Cespedes' hearing. Id. at 3; (Dfts. Notice of Motion at Exh. F.) Adell notified the DOC that Cespedes was confined to his cell, that his hearing had not yet commenced, that he had been served with his Spanish language copy of his misbehavior report on the seventh day of his SHU confinement, and that he wanted assistance which would be unavailable until February 27, 1989. Id. The DOC consented to Adell's request, and ordered that Cespedes' hearing be completed by March 3, 1989. Id.

 On February 27, 1989, Cespedes wrote to Sing Sing's Deputy Superintendent for Security, defendant Greiner. (Dfts. Notice of Motion at Exh.E); (Memorandum of Law in Support of Defendants' Motion for Summary Judgment, Cespedes v. Coughlin, 90 Civ. 2667 ("Dfts. SJ Memo") at 3 (Sept. 12, 1991).) In his letter to Greiner, Cespedes contended that he had been wrongly accused of the assault, and that he should not have been placed in SHU. Id. Cespedes also wrote that, although nine days had elapsed since his SHU confinement began and he had received a misbehavior report, his disciplinary hearing had not yet been held. Id. at 3-4.

 On February 28 and 30, 1989, defendant Stokes conducted a Tier III disciplinary hearing to adjudicate the assault charges against Cespedes. (Dfts. PI Opp. Memo at 3); (Dfts. Rule 3(g) Stmt. PP 6, 23); (Eldred Aff. at Exhs. 4 & 5.) New York provides for three "tiers" of disciplinary hearings. N.Y. Comp. Codes R. & Regs., tit. 7, § 270.3(a). A Tier I, or violation hearing, can result in a maximum penalty of loss of certain privileges for up to thirteen days or imposition of one additional work task for a maximum of seven days. Id. § 252.5(a). In a Tier II hearing, the hearing officer can discipline an inmate within a range of penalties, including confinement to the SHU for up to thirty days, but may not impose a loss of good time. Id. § 253.7(a). In a Tier III hearing, the hearing officer can impose the most severe penalties, including confinement to the SHU for a term limited only by the length of the inmate's overall sentence of incarceration, id. § 254.7(a)(3), and the loss of a specified period of good time credits. Id. § 254.7(a)(6).

 At Cespedes' Tier III hearing, Stokes received the testimony of defendants Roman and Fields. (Dfts. SJ Memo at 4.) Fields testified that a confidential informant told him that Cespedes had assaulted an inmate, while Roman testified that Cespedes was not in his cell when the assault occurred. Id. Cespedes testified at the hearing that he was speaking with other prisoners when the assault took place, and that he had no involvement in the incident. Id. ; (Pltf. Memo at 4.) Cespedes' version of the events was corroborated by the testimony of two witnesses whom Cespedes called to testify on his behalf, inmates Puentes and Diaz. (Dfts. PI Opp. Memo at 3.)

 In view of the evidence presented to him, on March 3, 1989, Stokes determined that Cespedes had committed the assault. In rendering this decision, Stokes "held that correction officer Roman had credibly testified that Cespedes was not in his cell at the time of the assault and [Stokes] accepted Sgt. Fields' statement that a confidential informant had identified Cespedes as the assailant." (Dfts. SJ Memo at 4.) Moreover, Stokes "rejected the testimony of inmates Puentes and Diaz, since [Stokes] had determined that [Puentes and Diaz] could not have spoken with Cespedes[] at the time of the assault[] because they were in different area [sic]." Id. According to Cespedes, "Stokes made no further inquiries into the factual underpinnings of [Fields'] conclusion; for example, he did not inquire as to the name of [Fields'] confidential source, whether the confidential source witnessed the alleged assault, or even whether the confidential source was an inmate, correctional officer or civilian." (Pltf. Memo at 4.) Stokes sentenced Cespedes to one year confinement in SHU, to be reduced to seven months if Cespedes exhibited good behavior. Id. Cespedes' sentence also included the loss of one year's "good time credits" and commissary, phone, and package privileges. (Report at 1.)

 Also on March 3, 1989, Greiner wrote to Cespedes in response to Cespedes' letter. (Dfts. Notice of Motion at Exh. H); (Dfts. SJ Memo at 4.) Greiner informed Cespedes that his disciplinary hearing was timely because "on [February 24, 1989,] [the] Albany [DOC] granted an extension for your Tier III hearing to be completed [on March 3, 1989] [and] Lt. Stokes completed this Tier III hearing by [March 3, 1989]." Id. at 4-5.

 Cespedes appealed Stokes' findings and sentence to the DOC. (Eldred Aff. at Exh. 7); (Dfts. PI Opp. Memo at 4.) Cespedes alleged that Stokes was not a fair and impartial hearing officer because Stokes had also investigated the charges against Cespedes prior to the hearing. (Dfts. PI Opp. Memo at 4.) Cespedes also complained that Stokes improperly accepted Fields' testimony that a confidential informant had implicated Cespedes in the assault. Id. On May 19, 1989, Donald Selsky ("Selsky"), the DOC's Director of Special Housing/Inmate Discipline, overturned Cespedes' sentence. (Dfts. SJ Memo at 5); (Dfts. Notice of Motion at Exh. B); (Dfts. SJ Memo at 5); (Eldred Aff. at Exhs. 8 & 9.) Selsky found that there had been a "procedural error" in Cespedes' adjudication, (Dfts. PI Opp. Memo at 4), because the

hearing officer was determined to have been involved in the investigation as he wrote the misbehavior report on another inmate who acted in concert with the inmate charged [(Cespedes)]. [There was] no indication that [the] hearing officer made an independent assessment of the reliability of the confidential source [and] no documentation as to why witnesses were not interviewed in the inmate's presence.

 (Dfts. Notice of Motion at Exh. B); (Dfts. SJ Memo at 5); (Eldred Aff. at Exhs. 8 & 9.)

 On May 25, 1989, Sing Sing officials received a copy of Selsky's reversal order. (Dfts. PI Opp. Memo at 5.) The next day, Sing Sing's disciplinary office and Inmates Records Coordinator received the order. Id. According to Cespedes, once he received notice of Selsky's reversal, he told defendants Keane and Orengo that he should be immediately released from SHU. (Dfts. PI Opp. Memo at 4.) Cespedes claims that, despite his demands, he was not released from SHU until June 2, 1989. Id. ; (Plaintiff's Objections to Report and Recommendation, Cespedes v. Coughlin, 90 Civ. 2667 ("Pltf. Objs.") at 7-8 (Aug. 9, 1995).) Defendants dispute plaintiff's version of these facts, and contend that they were not aware that plaintiff remained in SHU after his sentence was reversed. (Affidavit of John P. Keane in Support of Defendant's Motion for Partial Summary Judgment, Cespedes v. Coughlin, 90 Civ. 2667 ("Keane Aff.") PP 11-16 (Aug. 13, 1991).)

  On April 20, 1990, Cespedes was permitted to commence the instant lawsuit in forma pauperis. (Order, Cespedes v. Coughlin, 90 Civ. 2667 (April 20, 1990).) In his pro se Complaint filed that same day, Cespedes sets forth a Section 1983 federal claim as well as unspecified state law claims. (Complaint, Cespedes v. Coughlin, 90 Civ. 2667 ("Complaint") at 3 (April 9, 1990).) Cespedes' Section 1983 cause of action alleges that "the acts of defendants acting under color of state law, and each of them, deprived plaintiff of liberty without due process of law in violation of the Fourteenth Amendment to the United States Constitution." Id. Specifically, he alleges, inter alia, that: (1) Stokes was not a fair and impartial hearing officer at his Tier III hearing; (2) Alvelo failed to provide plaintiff with proper assistance at his hearing; and (3) Keane and Orengo improperly allowed plaintiff to remain confined in SHU after learning that plaintiff's hearing disposition had been reversed. (Report at 2); see (Complaint at 3 & Exh. A.) Cespedes' state claims arise from two allegations in his Complaint: (1) that his SHU confinement "caused him physical and psychic suffering . . . [and] emotional distress"; and (2) that his treatment "violated certain rights guaranteed to [plaintiff] by New York law." Id. As a result of these allegations, Cespedes demands: (1) punitive damages in the amount of $ 50,000; (2) compensatory damages in the amount of $ 100 for each say he spent in SHU; (3) reasonable costs and attorneys' fees; (4) a "preliminary and permanent injunction enjoining defendants from commencing further disciplinary action arising out of the underlying incidents"; and (5) "such other further relief as may be just." Id. at 4.

 The procedural history of the instant case is somewhat complex, and has been inordinately drawn out. On May 9, 1990, this case was referred for assignment to a magistrate judge, (Order, Cespedes v. Coughlin, 90 Civ. 2667 (May 9, 1990)), and on that same day Magistrate Judge Grubin was assigned to it. (Notice of Case Assignment, Cespedes v. Coughlin, 90 Civ. 2667 (May 9, 1990).) On September 12, 1991, defendants moved for summary judgment. (Report at 3.) On September 25, 1991, Magistrate Judge Grubin placed the instant case on the suspense calendar pending the appointment of counsel for Cespedes from the Pro Bono Panel of the United States District Court for the Southern District of New York. Id. ; (Order, Cespedes v. Coughlin, 90 Civ. 2667 (Sept. 25, 1991).) On August 5, 1992, Cespedes was appointed counsel. (Notice of Attorney Appearance, Cespedes v. Coughlin, 90 Civ. 2667 (Aug. 5, 1992).) On October 28, 1992, Cespedes filed papers in opposition to defendants' motion for summary judgment, as well as a motion to amend his Complaint and for partial summary judgment against defendant Stokes. Defendants filed their reply papers in support of their motion for summary judgment and their opposition to plaintiff's motions on December 8, 1992. On December 21, 1992, plaintiff submitted his reply in support of his motion for partial summary judgment and to amend his Complaint.

 On April 12, 1993, Magistrate Judge Grubin ordered this case's removal from the suspense docket. (Order, Cespedes v. Coughlin, 90 Civ. 2667 (April 12, 1993).) Pursuant to a Stipulation and Order, on September 17, 1993, Magistrate Judge Grubin held discovery in this case in abeyance pending the determination of the parties' respective motions. (Report at 4); (Order, Cespedes v. Coughlin, 90 Civ. 2667 (Sept. 17, 1993).) Her consideration of the motions was further delayed by consent of the parties pending the Second Circuit's decision on a petition for rehearing in a case apparently controlling some of the issues presented in the case at bar. (Report at 4.) On October 6, 1994, defendants Roman and John Doe, neither of whom were ever served with plaintiff's Complaint, were dismissed with prejudice from this action. (Notice of Voluntary Dismissal, Cespedes v. Coughlin, 90 Civ. 2667 (Oct. 6, 1994).)

 On July 27, 1995 Magistrate Judge Grubin issued her Report regarding the parties' motions. On August 9, 1995, plaintiff submitted his objections to the Report. (Pltf. Objs. at 14.) On August 10, 1995, defendants' requested additional time to respond to plaintiff's objections. (Letter from Angela M. Cartmill, Assistant Attorney General for the State of New York, to the Honorable David N. Edelstein, United States District Judge for the Southern District of New York (Aug. 10, 1995).) On August 28, 1995, this Court rejected defendants' application for an extension of time as violative of this Court's Individual Rules. (Memorandum Endorsement, Cespedes v. Coughlin, 90 Civ. 2667 (Aug. 28, 1995).)

 Finally, on February 5, 1997, this Court signed a stipulation of voluntary dismissal of claims against defendants Coughlin, Greiner and Fields. (Order, Cespedes v. Coughlin, 90 Civ. 2667 (Feb. 5, 1997).) As a result, there are only four defendants remaining in this litigation: Keane, Orengo, Stokes and Alvelo.


 There are three motions underlying Magistrate Judge Grubin's Report to this Court. Defendants Coughlin, Greiner, Fields, Keane and Orengo filed a joint motion for summary judgment. Cespedes submitted a cross-motion for partial summary judgment against Stokes and a motion to amend his pro se complaint to one drafted by his counsel.

 In light of a recent United States Supreme Court decision, Sandin v. Conner, 515 U.S. 472, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995), which was handed down after the parties' respective submissions concerning the instant motion were filed, Magistrate Judge Grubin recommended not only that this Court grant defendants' summary judgment motion, but also that this Court grant summary judgment sua sponte to the remaining two defendants in this litigation, Stokes and Alvelo. (Report at 8.) Alternatively, Magistrate Judge Grubin suggested that this Court "dismiss all claims against [Stokes and Alvelo] pursuant to this Court's inherent authority to do so under 28 U.S.C. § 1915(d) without requiring the formality of a motion as [those claims] are 'frivolous' within the meaning of that provision." Id. In light of her finding that plaintiff's claims are meritless, Magistrate Judge Grubin stated that "obviously, plaintiff's motion to amend the complaint and his motion for partial summary judgment should be denied." Id. at 9. In addition, Magistrate Judge Grubin notes that because Cespedes' proposed amended Complaint drops his state law claims, if this Court permits him to amend his Complaint, "the retention of supplemental jurisdiction over plaintiff's state law claims is not warranted." Id. 9 n.3.

 Plaintiff's objections to Magistrate Judge Grubin's Report all center on her interpretation of the Supreme Court's Sandin decision. First, plaintiff argues that Sandin "has no application to prison disciplinary proceedings at which inmates may lose good time credits." (Pltf. Objs. at 2.) Second, plaintiff claims that Magistrate Judge Grubin's Report "fails to recognize that the amount of process due in any particular case must be based upon the maximum penalty that may be imposed, rather than the actual penalty imposed." Id. at 3. Third, plaintiff asserts that the length of his SHU confinement raises material issues of fact regarding whether he suffered "atypical and significant hardship" under Sandin. Id. at 7. Finally, plaintiff contends that, under Sandin, a factual record must be developed regarding the degree of his restraint while in SHU in relation to "the ordinary incidents of life in New York correctional facilities." Id. at 11. As noted above, defendants did not respond to plaintiff's objections.


 Before resolving the issues currently before it, this Court first must set forth the legal principles which govern the instant opinion.


 The relevant legal standards for purposes of the instant opinion are those which govern: (1) a district court's review of a magistrate judges's recommendation; (2) a motion for summary judgment; and (3) a claim pursuant to Section 1983.

 A. Standard for Reviewing a Magistrate's Recommendation

 Under Federal Rule of Civil Procedure ("Rule") 72(b), and Title 28, United States Code, Section 636(b)(1)(A), a district court evaluating a magistrate judge's recommendation is permitted to adopt those portions of the recommendation to which no specific objection is made, as long as those sections are not clearly erroneous. Thomas v. Arn, 474 U.S. 140, 149, 106 S. Ct. 466, 471-72, 88 L. Ed. 2d 435 (1985); see also Ehinger v. Miller, 942 F. Supp. 925, 927 (S.D.N.Y. 1996); Washington v. Lenihan, 1996 U.S. Dist. LEXIS 8689, 87 Civ. 4770, 1996 WL 345950 (S.D.N.Y. June 21, 1996). Where a party makes a "specific written objection" within "[ten] days after being served with a copy of the [magistrate judge's] recommended disposition," Fed. R. Civ. P. 72(b), however, the district court is required to make a de novo determination regarding those parts of the report. United States v. Raddatz, 447 U.S. 667, 676, 100 S. Ct. 2406, 2412-13, 65 L. Ed. 2d 424 (1980).

 The term "de novo determination" has "an accepted meaning in the law. It means an independent determination of a controversy that accords no deference to any prior resolution of the same controversy." Id. at 690, 100 S. Ct. 2406, 2419, 65 L. Ed. 2d 424 (Stewart, J., dissenting); see also Ocelot Oil Corp. v. Sparrow Indus., 847, F.2d 1458, 1464 (11th Cir. 1988). Therefore, de novo review "means reconsideration afresh by the district judge in this sense: no presumption of validity applies to the magistrate's findings or recommendations." 7 Pt. 2 James Wm. Moore, Moore's Federal Practice, P 72.04[10.-2], at 72-96 (1995). If the district court disagrees with the magistrate judge's proposals, or any part of them, the judge is free to substitute his own view for that of the magistrate judge without any threshold finding whatsoever. Id. However, while the district court is not required to conduct a new hearing regarding a party's objections to the magistrate judge's recommendations, it is required to review the record of the proceedings before the magistrate judge Id. at P 72.04[10.-2], at 72-98.

 In addition, "the district judge retains the power to engage in sua sponte review of any portion of the magistrate's report and recommendation, regardless of the absence of objections." 7 Pt. 2 Moore's Federal Practice, P 72.04[10.-1], at 72-95. Such sua sponte review "may be under a de novo standard, or any lesser standard of review." Id. In making its review, "the district judge may accept, reject or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions." Fed. R. Civ. P. 72(b).

 Because plaintiff timely filed objections to the Report, this Court is required to undertake a de novo review of the motions underlying Magistrate Judge ...

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