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September 3, 1997


The opinion of the court was delivered by: LARIMER

 This action is brought pursuant to 42 U.S.C. ┬ž 1983. Plaintiff Gaylord Burnell, who at all relevant times was an inmate at Attica Correctional Facility, seeks damages for alleged violations of the due process clause of the Fourteenth Amendment to the United States Constitution. Presently before me is defendants' motion for summary judgment.


 Burnell's claims arise out of events that occurred during an inmate demonstration at Attica Correctional Facility. Subsequent to the demonstration, Burnell was charged by Correction Officer George Heltz ("Heltz") with a leadership role. In accordance with prison regulations, a disciplinary hearing was held concerning the charge, over which hearing officer Lt. Leroy Grant ("Grant") presided and at which Burnell appeared.

 At the hearing, Heltz testified that he recognized Burnell as an instigator of the demonstration from a distance of 25 or 30 feet, and also recognized the 'military fatigue type hat' Burnell was wearing. Heltz knew Burnell because Heltz had worked in Burnell's housing block for four years.

 Burnell denied that he was an instigator. He testified that at all times he was waiting for the demonstration to end, along with other inmates, at the side of the yard. Three inmate witnesses (Jihad, Amacher, Boyd) testified, essentially corroborating Burnell's story.

 Burnell also sought review of a videotape that was made of the demonstration, to prove that he never urged other inmates to join in the demonstration. Defendant Grant refused to allow the videotape into evidence, but watched it himself.

 A fourth inmate testified by telephone from Wende Correctional Facility where he was then housed. This inmate -- "Perez" -- also had been charged with a leadership role. At the end of Perez' testimony Burnell requested that the misbehavior report charging Perez with a leadership role be submitted into evidence. It was not.

 At the conclusion of the hearing, Grant found Burnell guilty of rioting and demonstration and issued a written decision recommending that Burnell's punishment include: (1) 750 days in the special housing unit ("SHU"); (2) one year loss of "good time"; (3) loss of telephone privileges for 750 days; (4) loss of commissary and package privileges for one year; and (5) a concurrent two year term of keeplock. Grant also issued a written statement describing the evidence upon which he relied. Grant found Heltz's "written and unwavering verbal testimony" to be highly credible. Grant noted in particular Heltz's ability to identify Burnell's hat. Grant found the testimony of the inmate witnesses less credible because the testimony was "self-serving" (i.e., it supported the prisoners' claims that they too were uninvolved in the riot).

 Thereafter, the Director of Special Housing, acting on behalf of Commissioner Coughlin's office, reduced Burnell's punishment to: one year in SHU with loss of specified privileges, one year loss of "good time", and a one year concurrent term of keeplock with loss of commissary, packages, and telephone privileges. *fn1" The adequacy of Burnell's hearing subsequently was upheld by the Appellate Division of the New York Supreme Court. See Burnell v. Coughlin, 177 A.D.2d 1061, 578 N.Y.S.2d 302 (4th Dep't 1991).


 Burnell commenced this lawsuit, pro se, on July 24, 1990. Burnell claims that Officer Heltz knowingly wrote a false misbehavior report and that the resulting disciplinary hearing was constitutionally deficient because of numerous procedural errors. Specifically Burnell claims that hearing officer Grant: (1) refused to take testimony from four prospective witnesses; (2) contacted witnesses outside of Burnell's presence; (3) did not provide a written explanation to Burnell for failing to call witnesses; (4) failed to conduct the hearing and evaluate the evidence objectively due to his security-related functions; (5) refused to allow Burnell to view a videotape of the disturbance; and (6) did not allow him to review inmate Perez' misbehavior report or introduce the report into the record.

 Defendants now move for summary judgment. Relying on Sandin v. Conner, 515 U.S. 472, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995), defendants argue that Burnell's punishment did not abridge a liberty interest requiring due process protection. Alternatively, defendants assert that Burnell was afforded all the process he was due. Defendants also contend that qualified immunity shields them from liability. Finally, ...

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