claim where original hearing was reversed and expunged, and sentence ordered on rehearing was limited to punishment already served).
Finally, plaintiff received a written statement of the evidence relied on by Hearing Officer Bates for his finding of guilty on the charges of assault on staff and committing an unhygienic act, as well as his reasons for the disciplinary penalty imposed. That evidence consisted of the report of Officer Sullivan and photographs of the area where the incident took place (see Item 23, Ex. 16). This is sufficient to meet the "some evidence in the record" standard of Superintendent v. Hill and Wolff v. McDonnell. See Rudd v. Sargent, 866 F.2d 260, 262 (8th Cir. 1989)(statements in officer's disciplinary report constitute "some evidence" even though officer did not witness alleged violation); White v. Kane, 860 F. Supp. 1075, 1078 (E.D.Pa. 1994)(guards' written report constitutes "some evidence"), aff'd, 52 F.3d 319 (3d Cir. 1995); Ames v. Artuz, 1989 U.S. Dist. LEXIS 5354, 1989 WL 54114 at *6, n. 10 (S.D.N.Y. 1989)("To discount or discredit [the officer]'s report . . . as evidence would necessarily require . . . an independent assessment of the charging officer's credibility and to weigh all the evidence adduced at the disciplinary hearing accordingly--a function neither required nor encouraged by Hill.").
Under these circumstances, I find that plaintiff received all the process due to him in the administrative adjudication of the misbehavior report arising out of the June 27, 1995 feces-throwing incident. Accordingly, I find that no reasonable jury could return a verdict in favor of plaintiff on his due process claims. Defendants are therefore entitled to summary judgment dismissing the complaint insofar as it alleges a denial of due process.
C. Reversal of July 13, 1995 Hearing.
Defendants also seek summary judgment on the ground that the reversal of the July 13, 1995 hearing determination, expungement of the disciplinary penalties imposed as a result of that hearing, and rehearing of the charges in the June 27, 1995 misbehavior report cured any procedural defects and precludes plaintiff from bringing a due process claim under § 1983.
In Walker v. Bates, 23 F.3d 652 (2d Cir. 1994), cert. denied, 515 U.S. 1157, 115 S. Ct. 2608, 132 L. Ed. 2d 852 (1995), the Second Circuit held that reversal on administrative appeal does not cure procedural defects that occurred at a prisoner's disciplinary hearing where the reversal occurs after the prisoner has served at least a portion of the restrictive confinement. Id. at 658; see also Mays v. Mahoney, 23 F.3d 660 (2d Cir. 1994)(same). Neither Walker nor Mays addressed the question presented in this case-- i.e., whether administrative reversal, expungement and rehearing of a disciplinary charge, resulting in a significant reduction of the length of punitive confinement and at least partial credit for time served on restricted diet, cured the procedural defects that allegedly occurred at the first hearing of the charge. As suggested by the discussion above, because reversal, expungement and rehearing afforded plaintiff all the process due him under Wolff v. McDonnell, the procedural defects of his first hearing have been cured.
Accordingly, the rule of Walker and Mays does not apply in this case. Defendants are therefore entitled to summary judgment on the ground that the administrative reversal, expungement and rehearing on September 28, 1995 of the disciplinary charges arising out of the June 27, 1995 feces-throwing incident cured the procedural defects alleged to have occurred at the first hearing on July 13, 1995.
D. Qualified Immunity.
State officials performing discretionary functions in the course of their duties are immune from suits alleging constitutional violations "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982)(quoted in Russell v. Coughlin, 910 F.2d 75, 78 (2d Cir. 1990)). Even when such rights are clearly established, qualified immunity will protect a government official "if it was objectively reasonable for [the official] to believe that his acts did not violate those rights." Robison v. Via, 821 F.2d 913, 921 (2d Cir. 1987); Russell, supra, 910 F.2d at 78; Gittens v. LeFevre, 891 F.2d 38, 42 (2d Cir. 1989). "The objective reasonableness test is met--and the defendant is entitled to immunity--if 'officers of reasonable competence could disagree' on the legality of the defendant's actions." Lennon v. Miller, 66 F.3d 416, 420 (2d Cir. 1995).
Thus, a defendant is entitled to summary judgment on qualified immunity grounds when, "looking at the evidence in the light most favorable to, and drawing all inferences most favorable to, the plaintiff," Halperin v. Kissinger, 257 U.S. App. D.C. 35, 807 F.2d 180, 189 (D.C.Cir. 1986), quoted in Robison, supra, 821 F.2d at 921, the court determines that no reasonable jury could conclude that it was objectively unreasonable for the defendant to believe that his or her conduct or actions did not violate an established federally protected right. Lennon, supra, 66 F.3d at 420. "In other words, if any reasonable trier of fact could find that the defendants' actions were objectively unreasonable, then the defendants are not entitled to summary judgment." Id.
In this case, as the above discussion demonstrates, no reasonable trier of fact could conclude that the issuance and approval of the cell shield and restrictive diet orders by defendants Bartlett and Burge as a response to plaintiffs conduct on June 27, 1995 was objectively unreasonable. Those defendants are therefore entitled to summary judgment dismissing the claims for damages against them on the ground of qualified immunity.
However, because a reasonable trier of fact could find that defendant Rabideau's conduct of the July 13, 1995 disciplinary hearing (which was later reversed, expunged and reheard), and the disciplinary penalty imposed as a result of that hearing (which was substantially reduced on rehearing), was objectively unreasonable, defendant Rabideau is not entitled to summary judgment on qualified immunity grounds.
II. Plaintiff's Motion to Amend/Supplement His Complaint.
Rule 15 of the Federal Rules of Civil Procedure provides that once time for amending a pleading as of right has expired, a party may request leave of court to amend, which "shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). The mandate of this rule requires the court to allow a party to amend its pleadings "in the absence of any apparent or declared reason -- such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc." United States v. Continental Illinois National Bank and Trust Co. of Chicago, 889 F.2d 1248, 1254 (2d Cir. 1989). Thus, if the underlying facts or circumstances relied upon by a party may be a proper subject of relief, the party should be afforded the opportunity to test the claim on its merits. Id.
In this case, plaintiff seeks to amend his complaint to challenging the constitutionality of the rehearing concluded on September 28, 1995. As suggested by the discussion above, such an amendment would be futile because the record demonstrates that the rehearing of the disciplinary charge, and the reduction in plaintiffs disciplinary penalty which resulted, provided plaintiff with the procedural protections he was due and cured any procedural defects that may have occurred during the July 13, 1995 hearing.
Plaintiff also claims that he should be allowed to supplement his complaint pursuant to Fed.R.Civ.P. 15(d), which provides that a party may "serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented." Under this rule, a party may supplement the original pleading to add new claims or new defendants, based on subsequent occurrences which are related to the claims presented in the original complaint. Klos v. Haskell, 835 F. Supp. 710, 715 (W.D.N.Y. 1993), aff'd, 48 F.3d 81 (2d Cir. 1995); Albrecht v. Long Island R.R., 134 F.R.D. 40, 41 (E.D.N.Y. 1991).
In this case, plaintiff's original complaint was dated September 29, 1995, and was filed in the Northern District of New York on October 10, 1995. The rehearing was completed on September 28, 1995. The only event set forth in plaintiff's proposed "Amended Complaint for Supplemental Pleadings" which occurred subsequent to the filing of the complaint was the November 22, 1995 administrative affirmance of the rehearing determination. Since this court has already found that the rehearing afforded plaintiff due process under Wolf v. McDonnell and cured the procedural defects of the original hearing, leave to supplement to add a claim based on an alleged procedural deficiency in the September 28, 1995 rehearing would likewise be futile.
Accordingly, plaintiffs motion for leave to amend or supplement his complaint is denied.
III. Plaintiff's Motion for Appointment of Counsel.
Finally, plaintiff has applied to the court for appointment of counsel. Pursuant to 28 U.S.C. § 1915(d), the court may appoint counsel to assist indigent litigants. Sears, Roebuck & Co. v. Charles W. Sears Real Estate, Inc., 865 F.2d 22, 23 (2d Cir. 1988).
It is clear that appointment of counsel in this matter is in the judge's discretion. See In Re Martin-Trigona, 737 F.2d 1254 (2d Cir. 1986). The factors to be considered in deciding whether or not to appoint counsel are set forth by the Second Circuit in Hodge v. Police Officers, 802 F.2d 58 (2d Cir. 1986). However, the court should exercise its discretion to appoint counsel only in cases where the plaintiff has made "a threshold showing of some likelihood of merit." Cooper v. Sargenti Co., 877 F.2d 170, 174 (2d Cir. 1989).
As indicated by the discussion above, plaintiff has failed to make that showing in this case. Accordingly, his motion for appointment of counsel is denied.
For the foregoing reasons, it is recommended that defendants' motion for summary judgment ( Item 22) be granted, and the case dismissed.
Plaintiffs motion for leave to amend or supplement his complaint ( Item 30) is DENIED.
Plaintiff's Motion for appointment of counsel ( Item 45) is DENIED.
CAROL E. HECKMAN
United States Magistrate Judge
DATED: Buffalo, New York
April 29, 1997
Pursuant to 28 U.S.C. § 636(b)(1), it is hereby
ORDERED, that this Report and Recommendation be filed with the Clerk of the Court.
ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of this Court within ten (10) days after receipt of a copy of this Report and Recommendation in accordance with the above statute, Fed.R.Civ.P. 72(b) and Local Rule 72.3(a)(3).
The district court will ordinarily refuse to consider on de novo review arguments, case law and/or evidentiary material which could have been, but was not presented to the magistrate judge in the first instance. See, e.g., Patterson-Lietch Co., Inc. v. Massachusetts Municipal Wholesale Electric Co., 840 F.2d 985 (1st Cir. 1988).
Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Court's Order. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985); Wesolek, et al. v. Canadair Ltd., et al., 838 F.2d 55 (2d Cir. 1988).
The parties are reminded that, pursuant to Rule 72.3(a)(3) of the Local Rules for the Western District of New York, "written objections shall specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for such objection and shall be supported by legal authority." Failure to comply with the provisions of Rule 72.3(a)(3), or with the similar provisions of Rule 72.3(a)(2) (concerning objections to a Magistrate Judge's Decision and Order), may result in the District Court's refusal to consider the objection.
Let the Clerk send a copy of this Order and a copy of the Report and Recommendation to the plaintiff and the attorney for the defendants.
CAROL E. HECKMAN
United States Magistrate Judge
DATED: Buffalo, New York
April 30, 1997