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GLASPIE v. MAHONEY

August 20, 1997

LORENZO GLASPIE, Plaintiff, against JOHN MAHONEY; DONALD SELSKY; MASON HARRELL, Defendants.


The opinion of the court was delivered by: SPRIZZO

 SPRIZZO, D.J.:

 Incarcerated plaintiff pro se Lorenzo Glaspie ("Glaspie") brings the above-captioned action pursuant to 42 U.S.C. § 1983, alleging violations of his Fifth, Eighth, and Fourteenth Amendment rights in connection with a disciplinary hearing held at Sing Sing Correctional Facility ("Sing Sing"). Pursuant to Federal Rule of Civil Procedure 56, defendants John Mahoney ("Mahoney"), Donald Selsky ("Selsky"), and Mason Harrell ("Harrell") (collectively the "defendants") move for summary judgment and Glaspie cross-moves for summary judgment. For the reasons set forth below, defendants' motion for summary judgment is granted and plaintiff pro se 's cross-motion for summary judgment is denied.

 BACKGROUND

 The above-captioned action arises out of a Tier III disciplinary hearing (the "hearing") held at Sing Sing on October 9, 16, 26 and 27, 1992. See Memorandum of Law in Support of Defendants' Motion for Summary Judgment ("Defts.' Mem."), dated September 10, 1996, at 3; Plaintiff's Answering Brief Memorandum of Law Opposing Defendants [sic] Motion for Summary Judgment ("Pltf.'s Mem."), dated December 9, 1996, at 3. Glaspie was found guilty of acting in concert with two other inmates in the vicious attack on a fellow inmate, David Brown ("Brown"), which resulted in Brown being stabbed multiple times. *fn1" See Defts.' Mem. at 2, 3; Pltf.'s Mem. at 3.

 The main issue at the hearing was the identity of Brown's attackers. Glaspie, claiming that he did not participate in the attack, offered the testimony of Brown, who testified by telephone that he was attacked from behind by attackers that he believed were "white" or "hispanic" because he saw blonde hair. *fn2" See Transcript of Tier III Hearing ("Tr.") dated October 9, 16, 26, and 27, 1992 attached as Exh. 4 to defendants' Notice of Motion ("Defts.' Not. Mot.") dated September 10, 1996, at 4-5. Glaspie also called fellow inmates Andre Liverpool # 88-T-2371 and Mr. Coleman # 90-A-8582 to testify that each saw Glaspie in his locked cell at or about the time of the assault on Brown. See Tr. at 17-20. In addition, Glaspie's alleged co-assailant, inmate Ronald Munnerlyn # 90-T-1337 ("Munnerlyn"), testified that he was not robbed by Brown the day before the assault, see Tr. at 13, thus contradicting testimony that the attack on Brown was retaliatory. *fn3" Id. at 11. Finally, Glaspie offered a "go-around" sheet as proof that he was locked in his cell the morning of the attack. *fn4" Id. at 3.

 To establish Glaspie as one of Brown's attackers, Corrections Officer Jose Flores ("C.O. Flores"), the author of the misbehavior report regarding the attack on Brown, testified as to information supplied to him by a confidential informant. See Tr. at 10. C.O. Flores testified that the confidential informant, who had witnessed first-hand the brutal attack on Brown, identified Glaspie and his co-assailants out of a photographic array of approximately 300 photographs as the inmates that had attacked Brown. See Defts.' Mem. at 3; Tr. at 7, 28. C.O. Flores also testified that he had used this confidential informant in the past and the information supplied by him had been "extremely creditable." See Tr. at 12. At no time during the hearing did Hearing Officer Mahoney speak with the confidential informant nor did he even know the informant's true identity. Id. at 26. Glaspie's request to have the identity of the confidential informant disclosed was denied by Mahoney on the grounds that the prison would not be able to protect the informant from physical harm in the prison population. *fn5" Id. at 9, 26-28.

 C.O. Flores further testified that he saw Keith Harrell # 84-B-2456, an inmate who was identified as one of Brown's co-assailants, being carried by another inmate towards the prison's emergency room the morning of the attack on Brown. See Tr. at 8. C.O. Flores testified that Keith Harrell told him that he had been stabbed in the leg. Id.

 To establish that Glaspie had access to the area where the attack on Brown occurred, Corrections Officer Harrell testified that a "go-around sheet," like the one offered by Glaspie to prove that he was in his cell at the time of the assault, is generally correct only fifty percent of the time. See Tr. at 16. Harrell further stated that although he had never personally completed a "go-around" sheet, see id. at 24-25; Pltf.'s Mem. at 7, he had heard from other corrections officers that a number of prisoners had disarmed the prison's electronic door locking mechanisms in the past using magnets and other devices in order to sneak out of their cells undetected. Id. at 26.

 On October 27, 1992, Hearing Officer Mahoney found Glaspie guilty of assault on an inmate and sentenced him to 730 days confinement in the Special Housing Unit ("S.H.U."), *fn6" 730 days loss of commissary, packages and phones, and two years loss of "good time." *fn7" See Tr. at 28. On November 4, 1992, Glaspie appealed Hearing Officer Mahoney's decision. See Pltf.'s Mem. at 7. On December 30, 1992, Glaspie was notified that Selsky, Director of Special Housing and Inmate Discipline for the Department of Correctional Services, had affirmed Mahoney's decision. *fn8" Id.

 On March 7, 1994, Glaspie filed suit in federal district court. *fn9" See Form to be Used By Prisoners in Filing a Complaint under the Civil Rights Act, 42 U.S.C. § 1983, dated March 7, 1994. On May 15, 1996, Glaspie filed an Amended Complaint, claiming that he was denied due process by Hearing Officer Mahoney's, (1) failure to address the evidence presented on Glaspie's behalf; (2) failure to independently assess the reliability of the confidential informant; (3) by Harrell's misleading testimony at the hearing regarding the "go-around" sheet and electronic doors; and (4) by Selsky's failure to reverse Mahoney's decision. Glaspie also claims that Mahoney and Selsky denied him due process by subjecting him to confinement in the S.H.U. prior to the final disposition of the charges against him. See Form to be Used By Prisoners in Filing a Complaint under the Civil Rights Act, 42 U.S.C. § 1983 ("Am. Compl."), dated March 6, 1996.

 On September 10, 1996, defendants moved for summary judgment, claiming, inter alia : that Glaspie's confinement in the S.H.U. did not implicate a liberty interest; that even if Glaspie's confinement implicated a liberty interest, Glaspie was afforded due process at the hearing because Hearing Officer Mahoney adequately assessed the credibility of the confidential informant; that defendant Harrell's testimony given in an official proceeding is immune from constitutional tort liability; and that defendants are entitled to qualified immunity. *fn10" See Defts.' Mem. at 6, 8, 12, 13.

 On January 10, 1997, Glaspie filed a response to defendants' motion and cross-moved for summary judgment pursuant to Fed. R. Civ. P. 56(a), claiming, inter alia, that he had been denied due process by Hearing Officer Mahoney's "utter failure" to make an independent assessment of the confidential informant's credibility and reliability; that defendants were not entitled to qualified immunity; and that his confinement in the S.H.U. does implicate a liberty interest. *fn11" ...


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