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July 31, 1997

TYRONE WRIGHT and GEORGE LYONS, Plaintiffs, against T.J. MILLER, Acting Superintendent, et al., Defendants.

The opinion of the court was delivered by: BAER

 HAROLD BAER, JR., District Judge:

 Plaintiffs are inmates incarcerated in the custody of the New York State Department of Correctional Services ("DOCS"). They bring this action pursuant to 42 U.S.C. § 1983, seeking declaratory relief and money damages for alleged violations of their constitutional rights in the conduct of prison disciplinary hearings against them. Defendants move for summary judgment. For the reasons discussed below, the motion is GRANTED in part and DENIED in part.


 Plaintiffs were involved in an altercation with another inmate, Louis Maple, at the Woodburne Correctional Facility on October 9, 1995. As a result of the altercation, disciplinary charges were brought against plaintiffs. Each plaintiff had an individual Tier III disciplinary hearing conducted by hearing officer Lieutenant Thomas Trask, a defendant herein. At the conclusion of the separate hearings, Lieutenant Trask imposed the following penalties on plaintiffs. The disposition with respect to plaintiff Lyons was 15 months confinement to a special housing unit ("SHU") (and concomitant loss of privileges) and 12 months recommended loss of good time. The disposition for plaintiff Wright was 12 months SHU confinement (and loss of privileges) and 12 months recommended loss of good time. Plaintiffs appealed and each determination was reversed. The reversal was based on a failure to allow plaintiffs to call certain witnesses.

 Following the reversals, plaintiffs were each given a rehearing before another hearing officer, Lieutenant Anthony DeBartolo, another defendant herein. Lieutenant DeBartolo found plaintiffs guilty of the infractions charged and imposed the same sentence that had been imposed previously. Defendants appealed these determinations as well, but they were affirmed.

 Plaintiffs then brought this action in federal court alleging that their rights were violated in several ways with respect to the conduct of both the initial hearings and the rehearings. Specifically, plaintiffs allege their rights were violated with respect to the initial hearings when they were denied the right to call witnesses by defendant Trask (counts 1, 3) and when defendant T.J. Miller, the Acting Superintendent, failed to reverse the determinations (count 4). *fn1" They allege their rights were violated with respect to the second hearing when they were denied their right to call witnesses by defendant DeBartolo (counts 1, 5) and when they were denied their right to a hearing before an impartial hearing officer (counts 6, 7). The latter allegation relates to conversations Trask and DeBartolo had before each of the rehearings, which plaintiffs allege were improper and rendered DeBartolo partial.


 A. Edwards

 Surprisingly, neither plaintiffs nor defendants have addressed the significant impact of the Supreme Court's recent decision in Edwards v. Balisok, 137 L. Ed. 2d 906, 117 S. Ct. 1584 (1997) on this case. Edwards held that a "claim for damages and declaratory relief brought by a state prisoner challenging the validity of the procedures used to deprive him of good time credits" is not cognizable under § 1983 where the allegations of due process violations, if true, would "necessarily imply the invalidity of the punishment imposed" unless the prisoner establishes that the determination at issue has previously been invalidated. 117 S. Ct. at 1585, 1589. Plaintiffs' contentions here--that they were deprived of the right to an impartial hearing officer and the right to call witnesses on their behalf--if true, would necessarily imply an invalid disposition, i.e. their loss of good time and SHU confinement, and require reversal and a new hearing. Accordingly, any claims based on plaintiffs' rehearings (and thus all claims against defendant DeBartolo) are barred by Edwards, as those determinations were never invalidated. *fn2"

 The same analysis produces a different result when applied to the violations alleged with regard to the initial hearings. Those hearings were invalidated on appeal, thus meeting the prerequisite set forth in Edwards. The parties have not addressed this issue, although the complaint clearly sets forth claims against defendant Trask with respect to the denial of witnesses (count 3). Such claims can only relate to the initial hearings, at which Trask served as hearing officer. *fn3" Furthermore, the complaint states a claim against defendant Miller for failing to "rectify the errors of the hearing" (count 4). While the complaint does not specify which "hearing" is being referred to, a liberal reading of the complaint indicates this is a reference to the initial hearings, which were ultimately reversed by Donald Selsky, the Director of Special Housing.

 The inquiry, therefore, is whether plaintiffs can maintain a cause of action for the due process violations that occurred at the initial hearings, even though the sentence imposed in those hearings was reimposed in the subsequent hearings. It is well established that "where there has been a denial of due process, the victim is entitled at least to nominal damages," even if the resulting liberty deprivation is justified. Patterson v. Coughlin, 905 F.2d 564, 568 (2d Cir. 1990); Carey v. Piphus, 435 U.S. 247, 266, 55 L. Ed. 2d 252, 98 S. Ct. 1042 (1978) (recognizing section 1983 action for due process violation even where deprivation is justified). *fn4" Edwards itself recognized this principle and affirmed its validity in the prison context. Edwards, 117 S. Ct. at 1587. Edwards limited such actions, however, to two categories of cases: those where the challenge to the procedures, if valid, would not necessarily imply the invalidity of the punishment imposed and those where the punishment has already been invalidated. See Umar v. Johnson, 1997 U.S. Dist. LEXIS 8295, 173 F.R.D. 494, No. 94 C 5699, 1997 WL 321865 (N.D. Ill. June 9, 1997) at *7-8 (recognizing continued validity after Edwards of claims for injury inherent in due process violation itself, where due process claim does not necessarily invalidate substantive deprivation of liberty). As noted above, the initial hearing determinations were invalidated by DOCS, thus clearing the way for plaintiffs to proceed with this Section 1983 action for damages caused by the mere fact of a due process violation. If plaintiffs prove they were denied due process, they would be entitled to nominal damages for such a deprivation. They would also be entitled to damages for proven mental anguish resulting from the due process violation itself. Carey, 435 U.S. at 264 ("mental and emotional distress caused by the denial of due process itself is compensable under § 1983"); Miner v. City of Glens Falls, 999 F.2d 655, 662 (2d Cir. 1993). They would not, however, be entitled to damages for their incarceration in SHU or their lost good time, as those penalties were imposed pursuant to the rehearings, which the Court must deem constitutionally sufficient unless and until invalidated.

 B. Sandin

 Having overcome the Edwards hurdle with regard to the initial hearings, plaintiffs must also overcome the formidable hurdle established in Sandin v. Conner, 515 U.S. 472, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995). Sandin held that prisoners are entitled to due process protections only when they are subject to "atypical and significant hardship[s] . . . in relation to the ordinary incidents of prison life." 115 S. Ct. at 2300. Inmates alleging violation of their due process rights must "establish both that the confinement or restraint creates an 'atypical and significant' hardship under Sandin, and that the state has granted them ...

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