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GOMEZ v. /-- HEARING

May 19, 1997

JUAN GOMEZ, Plaintiff, against SABINA KAPLAN --- HEARING OFFICER, and DONALD SELSKY --- DIRECTOR OF SPECIAL HOUSING UNIT, Defendant.


The opinion of the court was delivered by: HAIGHT

 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.

 Background

 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.

 In this action, Gomez reasserts these criticisms, and contends that their effect was to deprive him of procedural due process rights. The parties ...


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