540 N.Y.S.2d 384 (3d Dep't 1989). Davidson said nothing at all about whether a subsequent criminal conviction might justify commencing a new disciplinary proceeding based on the same conduct. In Davidson, the inmate petitioner had prevailed in his Article 78 proceeding challenging a determination by DOCS finding him guilty of attempted escape. The lower court signed the inmate's proposed judgment ordering that all references to "the underlying charges and [the] alleged misconduct on which [they were] based" be expunged from the inmate's files. The defendants appealed, arguing that the order was overly broad and required them to expunge documents that had no detrimental effect on the inmate's status, were not related to the underlying disciplinary proceeding, and were integral to ongoing federal litigation instituted by the inmate against the defendants. The Third Department affirmed, stating that "it is beyond argument that allowing references to charges that have been dismissed and other mischievously equivocal information that might be unfairly construed to remain in prisoners' records leaves inmates in jeopardy of having these references unfairly used against them." Davidson, 154 A.D.2d at 806-07 (citation omitted). The court added that any documents needed for the federal litigation should be turned over to the state Attorney General with the express proviso that they be used only for defensive purposes.
Thus, Davidson in no way "clearly established" that defendants were barred from commencing the second disciplinary proceeding in 1993. It simply did not address the scenario at issue in this case at all.
The other two cases relied upon by the Third Department in Howard's case likewise did not address whether new disciplinary proceedings may ever be brought after an expungement order is issued. In Wong, the court held that although "expungement mandates that all references to the underlying charges be removed from the inmate's record," it was permissible for DOCS to retain, separately from the inmate's file, tapes of the prior administrative proceeding that the inmate petitioner had successfully challenged in an Article 78 proceeding, since retention of the tapes would not prejudice the inmate. Wong, 150 A.D.2d at 833. In Inman v. Coughlin, 131 A.D.2d 900, 516 N.Y.S.2d 350 (3d Dep't 1987), the court held that the defendants had not complied with a prior expungement order because an examination of the inmate's file "revealed numerous references to the charges underlying the Superintendent's proceeding" that was the subject of the expungement order. Id. at 901. The court held that "since expungement should serve the purpose of restoring petitioner to the status he enjoyed prior to the commencement of the Superintendent's proceeding, compliance with the expungement order requires that all references to the proceeding, the disposition and the underlying charges must be vacated from petitioner's record." Id.
All that these cases stand for, then, is the proposition that an expungement order requires that all references to the underlying charges be removed from the inmate's record. They do not discuss the propriety of subsequent proceedings based on an intervening conviction or other change in circumstances, much less "clearly establish" any law in that regard. The Third Department's statement in Howard's case that it was "constrained" to affirm the order granting his petition, then, seems to mean not that the court's decision was mandated by prior case law, but that the court believed that under the logic of, and the general principles underlying those cases, to permit the second finding of guilt against Howard to stand would have been unfair in light of the prior expungement order.
I also note that plaintiff has not pointed to a single case prior to the Third Department's 1995 decision in this case that squarely addressed the situation in Howard's case. Plaintiff cites Hartje v. Coughlin, 70 N.Y.2d 866, 523 N.Y.S.2d 462, 517 N.E.2d 1348 (1987), and several Appellate Division cases for the proposition that when a court reverses a determination of guilt in a disciplinary proceeding, the proper remedy is either expungement of the charges or remittal for a new hearing, the latter generally being reserved for cases involving curable procedural breaches.
While these cases do stand for the general proposition that, following an expungement order, DOCS cannot simply commence a new disciplinary proceeding based on the same charges, they do not address whether a change in circumstances (such as a subsequent criminal conviction) might permit a new proceeding. The Third Department so held in Howard's case, but prior to that the law in this area was certainly not clearly established.
Plaintiff's strained reading of Allah v. LeFevre, 132 A.D.2d 293, 522 N.Y.S.2d 321 (3d Dep't 1987), also fails to support his contention that the law in this area was clearly established before 1993. The court in Allah stated that "violations of constitutional rights necessitate expunging the tainted proceedings," and cited Jacobson v. Coughlin, 523 F. Supp. 1247 (N.D.N.Y. 1981), aff'd, 688 F.2d 815 (2d Cir.), cert. denied, 459 U.S. 834, 74 L. Ed. 2d 75, 103 S. Ct. 77 (1982), in support of that proposition. Allah, 132 A.D.2d at 293. The court in Jacobson, which found that the defendants had committed "repeated violations of [the plaintiff inmate's] constitutional rights," directed the defendants to expunge all records concerning two disciplinary hearings from the plaintiff's files, and enjoined the defendants from pursuing any further disciplinary proceedings based on the events that gave rise to the plaintiff's § 1983 action. Jacobson, 523 F. Supp. at 1255. To read into the Allah court's citation of Jacobson the principle that expungement necessarily entails barring any further disciplinary proceedings simply imputes a far broader meaning to the court's statement that its words can support.
Additionally, some case law prior to 1993 suggested that bringing new charges in situations like Howard's may have been permissible, or that the issue was at least an open question. In Davidson v. Smith, 69 N.Y.2d 677, 512 N.Y.S.2d 13, 504 N.E.2d 380 (1986), the Court of Appeals held that disciplinary proceedings against the petitioner inmates had to be annulled because the rules that they were charged with violating had not been filed with the Secretary of State. The court added that "whether or not new charges under filed regulations can hereafter be lodged against petitioners for the alleged misconduct is an issue we do not reach on this appeal." Id. at 679.
Defendants also cite People ex rel. Williams v. Rodriguez, 108 A.D.2d 1007, 485 N.Y.S.2d 395 (3d Dep't), appeal denied, 65 N.Y.2d 603 (1985). In Rodriguez, the habeas corpus petitioner had been on parole when he was arrested and charged with various crimes relating to an alleged burglary. Shortly thereafter, a parole violation warrant was issued based upon that incident. When the arresting officer failed to appear at the preliminary parole revocation hearing, the hearing officer found no probable cause to sustain the charges, and the warrant was withdrawn. Several months later, the petitioner was convicted at trial of burglary and related charges stemming from the same incident. A new parole violation warrant was then issued based on the conviction, and after a hearing, the petitioner's parole was revoked.
The petitioner then commenced a habeas corpus proceeding, alleging that the state was prohibited "from issuing a second warrant based upon the same conduct upon which [the first warrant] had been issued." The lower court dismissed the petition, and on appeal, the Appellate Division affirmed, stating that "contrary to petitioner's assertion, the second proceeding did not amount to a mere rehash of the first proceeding, as it was based on a new circumstance, i.e., his conviction." Id. at 1008 (citation omitted).
Admittedly, these cases are not factually identical to Howard's, but then neither are any of the cases relied upon by plaintiff. What all of this means is simply that in 1993 it was not clearly established that a prior expungement order would permanently bar any further disciplinary proceedings based on the same conduct, even where the inmate had in the interim been convicted of criminal charges arising out of that conduct. In fact, plaintiff himself implicitly recognizes this, for he states in his brief that certain cases prior to 1993 "put the defendants on notice that it was unlikely that the state courts would consider a criminal conviction a basis for unilaterally reopening a prison disciplinary hearing which a court had ordered reversed and expunged for constitutional error." Plaintiff's Opposition Memorandum at 16 (emphasis added).
To say that it is "unlikely" that the courts will rule in an official's favor is not the same as saying that it is clearly established that the official's act is unlawful.
In short, defendants could have reasonably believed that their actions relating to filing the second misbehavior report and prosecuting the matter in the second disciplinary proceeding as well as plaintiff's ensuing confinement in SHU, did not violate plaintiff's clearly established rights. They are therefore entitled to qualified immunity.
Plaintiff's motion for summary judgment (Item 42) is denied. Defendants' cross-motion for summary judgment (Item 51) is granted, and the complaint is dismissed.
IT IS SO ORDERED.
DAVID G. LARIMER
UNITED STATES DISTRICT COURT
Dated: Rochester, New York
October 22, 1997.