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March 26, 1997

ROBERT J. McCLELLAN, Superintendent of Southport Correctional Facility; B. LILAC, Correctional Officer at Attica Correctional Facility; THOMAS A. COUGHLIN, III, Commissioner of Department of Correctional Services for the State of New York; J. WOODWARD, Hearing Officer at Southport Correctional Facility, Defendants.

The opinion of the court was delivered by: LARIMER


 This is a civil rights action filed on January 21, 1993 pursuant to 42 U.S.C. § 1983 by Steve Husbands ("Husbands"), a prisoner who at all times relevant was incarcerated at the Southport Correctional Facility ("Southport"). Husbands filed his original complaint pro se but is now represented by counsel. Pending before the Court are defendants' motion for summary judgment and plaintiff's motion to amend the complaint. *fn1"

 Husbands claims that defendants violated his due process rights under the Fourteenth Amendment to the United States Constitution. In essence, Husbands alleges that he was not afforded certain procedural protections in the course of a Tier III hearing held concerning a misbehavior report that had been lodged against him by a corrections officer at Southport. Husbands also claims that the misbehavior report issued against him was false and was intended to cover-up an assault on Husbands by corrections officers and to prevent Husbands from seeking redress for the alleged assault. For the reasons discussed, infra, plaintiff's motion to amend his complaint is denied, defendants' motion for summary judgment is granted and the complaint is dismissed.


 Husbands' complaint stems from a misbehavior report, filed against him on June 1, 1991, by defendant corrections officer Blaine I. Lilac, III ("Lilac"). The misbehavior report charged Husbands with possession of contraband, that is a metal shank which was found under a locker in Husband's cell. A Tier III disciplinary hearing on the charge was held on June 7, 1991 before defendant hearing officer Larry Woodward ("Woodward"). Woodward found Husbands guilty of the charge and sentenced him to one year in the special housing unit ("SHU") with a loss of privileges and a one year loss of good time credits.

 Husbands appealed the hearing disposition to defendant Thomas A. Coughlin III ("Coughlin"), Commissioner of Department of Corrections for the State of New York. The appeal was heard on August 29, 1991 by Donald Selsky, the Director of Special Housing and Inmate Disciplinary Programs (Selsky is not a named defendant), who reduced Husbands' sentence to six months in SHU and twelve months loss of good time credit.

 On December 12, 1991, Husbands filed an Article 78 proceeding in state court, which was dismissed as moot after Commissioner Coughlin administratively reversed the results of Husband's Tier III hearing and expunged Husband's record.

 In his original complaint, Husbands claimed that he was denied a fair and impartial hearing because hearing officer Woodward (1) failed to adjourn the hearing in order for Husbands to obtain a new inmate assistant and (2) did not call the writer of the misbehavior report to testify.

 In his motion to amend, Husbands seeks to amend his complaint primarily to clarify the basis of the claim and the theories upon which he asserts liability. Basically, Husbands seeks to add facts relating to a riot that occurred at Southport while Husbands was incarcerated there. According to Husbands, after the riot, Lilac (and other corrections officers) removed him from his cell and physically assaulted him. Husbands claims that, in order to prevent him from seeking redress for the assault, Husbands was falsely charged with possession of an unauthorized weapon. Although he states in the factual portion of the proposed amended complaint that his beating was cruel and unusual punishment in violation of the Eighth Amendment, Husbands specifically asserts that he is not seeking to bring an independent claim on that basis. Rather, he seeks to add the allegations concerning Lilac's assault on him to demonstrate the factual circumstances leading up to the false misbehavior report.


 I. Plaintiff's motion to amend

 Husbands moves to amend his complaint to add a First Amendment claim that defendant Lilac filed a false misbehavior report against him to cover up an assault on Husbands and to prevent him from filing a grievance against the corrections officers who allegedly perpetrated the assault.

 Because the three year statute of limitations for § 1983 actions has expired, Husbands' would be allowed to amend his complaint only if the amended complaint "relates ...

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