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HARRIS v. KEANE

April 21, 1997

DARRYL HARRIS, Plaintiff, against Supt. JOHN P. KEANE; Deputy Supt. CHARLES GREINER; Lt. W. PATTERSON; Lt. ALBRITTON; Sgt. F.V. O'CONNOR; Sgt. LEGHORNE; Sgt. WEBBE; C.O. H. MUJAHID; C.O. A. FRANCIS; C.O. GARY PONICO; C.O. C. HOLDER; C.O. G. DELANEY; C.O. K. JACOBS; and C.O. L. CANNON, Defendants.


The opinion of the court was delivered by: BATTS

 DEBORAH A. BATTS, United States District Judge.

 The Pro Se Plaintiff brought this action pursuant to 42 U.S.C. ยง 1983, alleging various violations of his constitutional rights pursuant to the Fifth, Eighth and Fourteenth Amendments. *fn1" Defendants now move for summary judgment on all Plaintiff's claims.

 I. BACKGROUND

 Plaintiff, Darryl Harris, is an inmate currently in the custody of the New York State Department of Correctional Services ("DOCS") at Oneida Correctional Facility. During the alleged events relevant to this action he was confined to Sing Sing Correctional Facility ("Sing Sing"). (Pl.'s & Defs.' Local Civil Rule 3(g) Statements ("Stmts.") PP 1.) *fn2"

 The Defendants in this action, who were at the time of the complained-of incidents employed at Sing Sing, are now employed at different facilities, and include Superintendent John P. Keane, Deputy Superintendent Charles Greiner, Lieutenant Robert Patterson, Correction Sergeant Michael Leghorne, and Correction Officers Andrew Francis, Christopher Holder, and Kent Jacobs of Sing Sing, Lieutenant Paul Albritton of Queensboro Correctional Facility, Correction Sergeant Francis O'Connor of Greene Correctional Facility, Correction Sergeant William Webbe of Fishkill Correctional Facility, Correction Officer Gary Ponico of Green Haven Correctional Facility and Correction Officer Lewis Canon of Fulton Correctional Facility. *fn3" (Id. PP 2.)

 On January 3, 1993, an Inmate Misbehavior Report ("IMR") was issued by former Defendant Mujahid against Plaintiff. (Id. PP 3.) Plaintiff was charged with violating Prison Rules 104.13, Creating a Disturbance; 107.10, Interference with an Employee; 106.10, Refusing a Direct Order; 115.10, Refusing Search or Frisk; and 110.10, No Identification Card. (Id. PP 4.) As a result, Plaintiff was put on keeplock *fn4" status. (Id. PP 8.) The IMR was given to Plaintiff on January 4, 1993, and Plaintiff was released from keeplock after his Tier II hearing on January 6, 1993. (Id. PP 6, 8.) At the Tier II hearing Plaintiff pled not guilty to the charges and was found not guilty because the charges were unsubstantiated by the IMR. (Id. PP 7.)

 The incident which prompted the second IMR occurred at approximately 5:30 p.m. (Defs.' 3(g) Stmt. P 13.) However, Plaintiff contends that the incident could not have occurred at that time because his "job function was complete prior to 5:30 p.m. om [sic] February 7, 1993, as a result of the incident with Defendant Francis that occurred around 5:15 p.m." *fn5" (Pl.'s 3(g) Stmt. P 13.) Although Ponico's charges against Plaintiff were dismissed prior to a Tier II disciplinary hearing, (Pl.'s & Defs.' 3(g) Stmts. PP 16), as a result of these allegations Plaintiff was placed in keeplock from February 7-8, 1993. (Id. PP 15.)

 The Tier II hearing, regarding the first IMR of February 7, 1993, commenced on February 19, 1993, and was presided over by Defendant Robert Patterson. (Id. PP 17-18.) At the hearing, Plaintiff pled not guilty to the charges. (Id. PP 19.) Plaintiff requested that Defendants Francis and Ponico and Sergeants Leeman and Taylor testify at the Tier II hearing. (Id. PP 20.)

 On February 20, 1993, during the continuation of the Tier II hearing, Defendant Patterson removed Plaintiff from the hearing because Plaintiff was allegedly disruptive, uncooperative, and compromised institutional safety and correctional goals. (Defs.' 3(g) Stmt. P 21). Plaintiff maintains that he was removed because he challenged the accusations levied against him by Defendant Francis. (Pl.'s 3(g) Stmt. P 21.)

 After Plaintiff was removed, Defendant Patterson refused to hear the testimony of Leeman, Taylor and Ponico, stating that their testimony would jeopardize institutional safety and correctional goals, despite the fact that they had first-hand knowledge of the alleged incidents. (Pl.'s & Defs.' 3(g) Stmts. PP 22 & 24.) Consequently, Patterson found Plaintiff guilty of the charges based on the February 7, 1993 IMR and Francis' testimony. (Id. PP 25-26.) Plaintiff was placed in keeplock for seven days, and lost his package, commissary, and phone privileges. (Id. PP 25.) On February 20, 1993, Plaintiff appealed the Tier II disposition. On March 1, 1993, the Tier II decision was reversed. (Id. PP 27-28.)

 On August 23, 1993, another IMR was issued against Plaintiff by Defendant Francis charging Plaintiff with violating Rules 102.10, Threats and 106.10, Refusing a Direct Order. (Id. PP 29-30.) Plaintiff was served with this IMR on August 24, 1993, and a Tier II hearing was scheduled to commence on September 1, 1993. (Id. PP 32.) The hearing was adjourned until September 6, 1993, when the charges were dismissed as untimely. (Id. PP 33.) Plaintiff maintains that he was keeplocked at sometime between August 23, and September 5, 1993.

 Plaintiff filed an inmate grievance complaint alleging that Defendant Francis fabricated the charges in the August 23, 1993 IMR. (Id. PP 35; Porter Aff. Exs. D & E.) Upon subsequent investigation by the Central Office Review Committee, it found that Plaintiff's allegations were unsubstantiated and dismissed his grievance. (Pl.'s a Defs.' 3(g) Stmts. PP 36.)

 On September 22, 1993, Plaintiff was ordered to submit to a urinalysis exam because Defendant Holder suspected him of smoking marijuana. (Id. PP 38-39.) Defendant Holder did not personally observe Plaintiff smoking but states in his Affidavit that Correction Officer Valentine informed Holder that Plaintiff was smoking a cigar in his cell. (Holder Aff. at 4.) Plaintiff contends that no investigation took place. (Pl.'s 3(g) Stmt. P 40.) Plaintiff's urinalysis test results were negative. (Pl.'s & Defs.' 3(g) Stmts. PP 41.) Plaintiff was keeplocked for four hours while awaiting his testing. (Id. PP 43.)

 On July 11, 1994, an IMR was issued by Defendant O'Connor against Plaintiff, charging him with violating Rules 104.13, Creating a Disturbance; 106.10, Refusing a Direct Order; and 102.10, Threats. (Id. PP 44.) As a result of the IMR, Plaintiff was placed in keeplock on July 11, 1994, and was served with the IMR on July 12, 1994. (Id. PP 46-47.)

 A Tier II hearing commenced on July 15, 1994. (Id. PP 47.) Defendant Albritton presided over the hearing. (Id. PP 48.) Upon completion of the hearing, Plaintiff was found guilty of violating Rule 106.10, Refusing a Direct Order and found not guilty of violating Rules 104.13, Creating a Disturbance and 102.10, Threats. (Id. PP 49.) Defendant Albritton's stated reason for the disposition was based on Plaintiff's statement that he refused to comply with the officer's orders. (Defs.' 3(g) Stmt. P 50.) Plaintiff contends that Albritton told him that the guilty disposition was to "cover everyone's backside." (Pl.'s 3(g) Stmt. PP 50-51.) Plaintiff's supports his position by pointing out that Albritton crossed out the not guilty disposition and substituted a guilty disposition. (Pl.'s 3(g) Stmt. P 51.) Plaintiff was counseled and reprimanded but credited with four days pre-hearing confinement. (Pl.'s & Defs.' 3(g) Stmts. PP 51.) Plaintiff filed an appeal. (Id. PP 56.) On August 24, 1994, Plaintiff's Tier II hearing was reversed by Defendant Keane's designee, Captain Stark, on procedural grounds.(Id. PP 57.)

 As a result of this incident, Plaintiff filed an inmate grievance complaint on July 11, 1994, alleging that he was placed in keeplock by Defendant O'Connor for his refusal to comply with Correction Officer Geising's orders. (Id. PP 52; Porter Aff. Ex. F.) Plaintiff's grievance was investigated by Defendant Albritton, who attempted to interview Plaintiff concerning the circumstances surrounding the grievance. (Pl.'s & Defs.' 3(g) Stmts. PP 53-54.) Plaintiff was too busy to speak with Defendant Albritton. (Id. PP 54.) Consequently, on July 14, 1994, Plaintiff's grievance was denied. (Id. PP 55.)

 On August 20, 1994, an IMR was issued by Defendant Canon charging Plaintiff with violating Rules 106.10, Refusing a Direct Order; 109.12, Movement Regulation Violation; 104.13, Creating a Disturbance; and 124.16, Messhall Serving/Seating Violation. (Id. PP 58.) Plaintiff was served with the IMR on August 21, 1994. Defendant Patterson presided over a Tier II hearing on August 26, 1994. (Id. PP 60-61.)

 Upon completion of the hearing, Plaintiff was found guilty of violating Rules 106.10, Refusing a Direct Order and 124.16, Messhall Serving/Seating Violation, and not guilty of violating Rules 104.13, Creating a Disturbance and 109.12, Movement Regulation Violation. (Id. PP 62.) Defendant Patterson's disposition was based on Plaintiff's and Correction Officer Farina's testimony, the IMR, (Id. PP 63), and Plaintiff's grievance. *fn6" Plaintiff was keeplocked for seven days from August 20, through August 27, 1994. (Id. PP 65.) Thereafter, Plaintiff filed an appeal of the Tier ...


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