MEMORANDUM OPINION AND ORDER
HAIGHT, Senior District Judge :
This is a civil rights action under 42 U.S.C. § 1983 in which the pro se plaintiff, an inmate of the New York State correctional system, alleges violations of his constitutional rights in connection with a disciplinary hearing. The defendants are the hearing officer and that officer's superior, who approved the hearing disposition adverse to plaintiff. The case is now before the Court on the parties' cross-motions for summary judgment.
The facts are not in dispute. On August 14, 1993, plaintiff Juan Gomez was an inmate at the Green Haven Correctional Facility, maintained by the New York State Department of Correctional Services (DOCS). On that date, an altercation broke out in the prison yard, during the course of which an inmate named Garcia was stabbed. The prison authorities charged Gomez with having stabbed Garcia. A hearing on that charge began on August 22, 1993, before a hearing officer who is not a defendant in this action. That hearing officer found Gomez guilty of the charge on August 30, 1993. The proceedings were then reviewed by defendant Donald Selsky, DOCS' Director of the Office of Special Housing and Inmate Disciplinary Programs. Selsky had been designated "as the sole designee to hear prisoner's appeals of decisions rendered by DOCS disciplinary hearing officers in cases involving the most serious disciplinary offenses, so-called Tier III superintendent's hearings." Young v. Selsky, 41 F.3d 47, 49 (2d Cir. 1994). On November 9, 1993, Selsky reversed the hearing officer's August 30, 1993 finding that Gomez had stabbed Garcia. Selsky based that reversal upon the following stated reason: "Failure to interview witness in inmate's presence and provide written reason for denial." Ex. E to plaintiff's Local Rule 3(g) statement.
The second hearing on this stabbing charge began on December 2, 1993 before defendant Sabina Kaplan [sued herein as "Sally Kaplan"], a Senior Corrections Counselor at the Green Haven facility. Her official responsibilities included conducting Tier III hearings of inmates charged with committing infractions of departmental prison rules and regulations.
In accordance with DOCS procedures, on November 11, 1993 plaintiff was provided with a list of facility employees who could assist him in a defense. Plaintiff then requested certain specific forms of assistance. I will discuss Gomez's requests in some detail. But first it is necessary to consider the nature of Gomez's defense to the charge that he stabbed Garcia.
That defense was based upon misidentification of the assailant and alibi. Gomez contended at the hearing that at the time Garcia was stabbed, which as noted occurred in the prison yard, Gomez was confined to his cell.
The record reflects that initially the prison authorities identified an inmate named Carabello as Garcia's assailant. However, the authorities dropped the charge against Carabello and charged Gomez with the stabbing after a prison officer, Lt. P. Czyz, interviewed a confidential informant, another inmate, who identified Gomez as the assailant.
In his pre-hearing assistance requests, Gomez asked that his assistant interview three inmates: Marino, Carabello (the inmate previously identified as the assailant), and Garcia (the stabbing victim). Gomez also requested that a nurse named Bedell, who treated Garcia's wounds after the stabbing, and the confidential informant be produced as witnesses at his hearing. Gomez also requested that his hearing assistant obtain certain information. That information included a document called the "B-Block go-round list." That is a list that prepared by a corrections officer in the evening in anticipation of each inmate's activities during the next day. Plaintiff contends that this list, if produced, would have shown that he was in his cell at the time of the yard incident in which Garcia was stabbed.
Kaplan convened the hearing on November 23, 1993. She advised Gomez that the "go-round" list would not be produced because under prison procedures these lists were not retained longer than seven days. Kaplan further advised Gomez that the name of the confidential informant would not be revealed; that Czyz had interviewed the confidential informant; and that Kaplan had interviewed Czyz on that subject and would reinterview him. On that score, Kaplan says in her affidavit on this motion at P 9 fn.2: "My reinterview of Lt. Czyz satisfied me that the informant was reliable and could identify plaintiff as the assailant."
Kaplan also advised Gomez that inmates Marino and Caraballo were willing to testify on his behalf, but that the testimony must be taken by speaker phone, since those inmates were then housed in facilities other than Green Haven. Kaplan further advised Gomez that efforts to obtain the testimony by speaker phone of nurse Bedell, who had left the institution, had proven unsuccessful. Lastly, Kaplan advised Gomez that Garcia, the stabbing victim, declined to testify at the hearing.
Following Kaplan's determination that Gomez was guilty of stabbing Garcia, Gomez appealed on the grounds that Kaplan should have personally interviewed the confidential witness; that Kaplan should have obtained Bedell's testimony; that Kaplan should have had Garcia explain why he refused to testify; and that Gomez was wrongfully deprived of the "go-round list." Selsky, as reviewing officer, rejected all these contentions.
In this action, Gomez reasserts these criticisms, and contends that their effect was to deprive him of procedural due process rights. The parties now cross-move for summary judgment.
Defendants argue that the facts do not make out a constitutional violation. In the alternative, they rely upon the doctrine of qualified immunity.
Among other authorities defendants cite Richardson v. Selsky, 5 F.3d 616 (2d Cir. 1993), during the course of their argument that "there is no requirement that a hearing officer personally interview a confidential informant; his information may be relayed by a guard or other investigator." Defendant's brief at 12. Richardson is said to stand for the related proposition that "all that is required is there be some evidence in the record of the informant's reliability." Id. at 13.
Defendants' reliance upon Richardson is puzzling because the case furnishes considerable support to plaintiff at bar.
Richardson v. Selsky closely resembles the case at bar on its facts, quite apart from the fact that Donald Selsky is a defendant in both cases. The § 1983 plaintiff in Richardson, a DOCS inmate at the Green Haven facility, was charged with stabbing another inmate in a prison yard. Richardson denied that he was the inmate who stabbed the victim, one Caroline. The disciplinary hearing resulting in Richardson's conviction on the charge took place in March 1985. Deputy superintendent Capuano was the hearing officer. A prison officer, Lt. Fenton, advised the hearing officer that confidential informants had identified Richardson as the assailant. The Second Circuit's account of this aspect of the case appears at 5 F.3d at 618:
Capuano interviewed Lieutenant Fenton in Richardson's presence. Fenton stated that he had received information from "some sources that I know who they are and I'd rather not tell and there are some sources that I do not know who they are because they did not identify themselves." All of these sources, he stated, identified Richardson as the person who stabbed Caroline. With regard to the confidential sources, Fenton asserts that they had "proven reliable," that in his previous dealings with them he had had "positive results," and that he was "certain that the information [he] had received [was] accurate." Fenton said that according to the confidential sources, Richardson had retaliated against Caroline for refusing to be a witness on his behalf in a separate proceeding. Capuano directed that Richardson be escorted from the hearing room whereupon Capuano interviewed Fenton outside of Richardson's presence.
The hearing officer did not personally interview the confidential informants. Following his conviction on the charge Richardson received a sentence comparable to that imposed upon the plaintiff at bar. Richardson thereafter commenced an Article 78 proceeding in New York Supreme Court, Dutchess County. That court entered an opinion dated August 15, 1985 which stated:
"The hearing officer had no independent basis for making any evaluation of the credibility of Lt. Fenton's 'confidential informants,' since he did not communicate with any of them. He improperly relied upon Lt. Fenton's unsupported conclusory opinions and hearsay statements concerning their reliability and credibility."