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October 22, 1997

KENNETH PIERCE, et al, Defendants.

The opinion of the court was delivered by: LARIMER

 Plaintiff, Howard Pierce, who is an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), commenced this action under 42 U.S.C. § 1983 to recover damages for time that he spent in a Special Housing Unit ("SHU") from February 1993 to February 1995. In short, plaintiff alleges that after a New York State appellate court affirmed a lower court decision overturning a finding of guilt at a prison disciplinary hearing stemming from plaintiff's fatal stabbing of a fellow inmate, defendants, in contravention of the court's directives, conducted a second hearing based on the same facts, which resulted in a second finding of guilt, and over two years' confinement in SHU until a state court reversed that finding as well. Defendants are: Kenneth Pierce, a Corrections Lieutenant who authored the second misbehavior report that led to plaintiff's confinement in SHU; Larry Bates, the hearing officer at the second hearing; Donald Selsky, the Director of Special Housing for DOCS, who affirmed Bates's decision on plaintiff's administrative appeal; Robert J. McClellan, the Superintendent of Southport Correctional Facility, where the second hearing was held and where plaintiff was confined in SHU; and Thomas A. Coughlin, the Commissioner of DOCS. Both sides have moved for summary judgment.


 The relevant facts are largely undisputed. On April 16, 1991, inmate Roberto Martinez was fatally stabbed to death. A corrections officer thereafter filed an inmate disciplinary report against Howard alleging that Howard was the assailant. The copy given to Howard is dated April 19, 1991, and incorrectly states that the date of the incident was also April 19, 1991.

 On February 5, 1993, the Appellate Division, Fourth Department, affirmed the lower court's ruling, essentially for the same reasons relied upon by the lower court. The Fourth Department also "agreed with Supreme Court's conclusion that expungement of the charges was the appropriate remedy." Howard v. Coughlin, 190 A.D.2d 1090, 1091-92, 593 N.Y.S.2d 707 (4th Dep't 1993) (citation omitted).

 In May 1992, while Supreme Court's decision concerning the first misbehavior report was on appeal, Howard was convicted on an indictment in state court of one count of murder in the second degree in connection with Martinez's death. He was sentenced to twenty-five years to life imprisonment. That conviction was affirmed on appeal by the Appellate Division and by the Court of Appeals. People v. Howard, 209 A.D.2d 1014, 619 N.Y.S.2d 993 (4th Dep't 1994), aff'd, 87 N.Y.2d 940, 641 N.Y.S.2d 222, 663 N.E.2d 1252 (1996).

 On February 27, 1993, defendant Pierce filed a new, second misbehavior report ("second misbehavior report") against Howard, again charging him with various violations in connection with Martinez's murder. The second misbehavior report stated that "review of [Howard's] records indicates a felonious criminal conviction of Murder 2 [degrees] for an incident on April 16, 1991 at the Auburn Correctional Facility where [Howard] assaulted and killed Inmate Roberto Martinez ..." The second misbehavior report did not reference the prior disciplinary proceedings. Pierce stated that he was directed to file this second report by First Deputy Superintendent Holland at Southport, and that Pierce was unaware that there had been a prior hearing that had been reversed. Pierce Deposition ("Dep.") at 8, 10.

 A disciplinary hearing was held before defendant Bates on March 3, 1993. At the outset of the hearing, Howard told Bates about the prior Article 78 proceeding. Bates adjourned the hearing to "make inquiry" into the matter. Hearing Transcript ("Tr."), Plaintiff's Ex. 9, at 4. Bates returned with both the Supreme Court and Appellate Division decisions, and read or paraphrased the relevant portions into the record. Tr. at 6. After listening to Howard's objections to the second hearing, Bates stated that he considered Howard to be making two claims: one based on a double-jeopardy theory, and another that "it has already been determined by the courts one way or another." Tr. at 8. Bates stated that those were "serious issues" that he would "seriously consider," and that it would "take considerable legal research on [Bates's] part," so he again adjourned the hearing. Tr. at 8.

 Bates reconvened the hearing on March 11, 1993. He denied Howard's application to dismiss the charges, stating that because at the time of Howard's murder conviction in state court the original Article 78 proceeding was still on appeal concerning the first misbehavior report, and therefore, "there was no reason for the Department to bring up [the second] charge at that time." Tr. at 9. He added that he did not find it unreasonable for DOCS to have filed the second misbehavior report under the circumstances, and that he did not believe that Howard had been prejudiced by DOCS's actions. Tr. at 9.

 Bates also testified at his deposition in the instant case that after plaintiff alerted him to the prior judicial decisions relating to the first hearing, Bates contacted someone in DOCS's counsel's office. He did not testify to the exact content of his conversations with counsel, but apparently he was satisfied that the prior court decisions did not bar him from going ahead with the hearing, since he denied plaintiff's application to dismiss the charges.

 Plaintiff then commenced a second Article 78 proceeding. On February 23, 1994, Supreme Court, Albany County, issued a decision in plaintiff's favor, stating that "there does not appear to be any rule which makes conviction of a criminal charge an incident or event which, in turn, can become the basis of a charge by [DOCS]." The Appellate Division, Third Department, affirmed on February 2, 1995, stating that because "expungement mandates that all reference to the underlying charges be eradicated from an inmate's record, ... to uphold a determination of guilt in the instant proceeding and authorize departmental sanctions would in effect impose a penalty upon petitioner for actions expunged in the prior CPLR article 78 proceeding." Howard v. Coughlin, 212 A.D.2d 852, 622 N.Y.S.2d 134 (3d Dep't), appeal denied, 85 N.Y.2d 812 (1995). On February 16, 1995, plaintiff was released from SHU into the general prison population.

 Plaintiff commenced this action pro se on October 14, 1993. He has since retained counsel. Plaintiff does not challenge any aspect of the proceedings relating to the first misbehavior report. The second amended complaint asserts one cause of action alleging that by confining plaintiff to SHU after the Fourth Department issued its decision in plaintiff's first Article 78 proceeding, defendants deprived plaintiff of liberty without due process of law, in violation of the Fourteenth Amendment to the United States Constitution. Plaintiff seeks declaratory relief, compensatory damages in the amount of $ 100 per day for each day of his allegedly wrongful confinement in SHU, punitive damages from defendants Bates, Selsky and Coughlin in the amount of $ 25,000 each, and attorney's fees, costs and expenses.


 I. Due Process

 Defendants contend that plaintiff's claim fails because the filing of the second misbehavior report and the ensuing hearing were not precluded by the judicial decisions in plaintiff's first Article 78 proceeding. Defendants state that in compliance with those decisions, references to the violations found in the 1991 disciplinary hearing were expunged from plaintiff's record, and that plaintiff's subsequent murder conviction provided an adequate basis upon which to bring new charges against him based on the conviction on the indictment. Defendants also contend that the second disciplinary proceeding was not procedurally defective in any way.

 At the outset, however, I note that plaintiff is not advancing a procedural due process claim, but a substantive due process claim. Plaintiff does not allege either that the manner in which the second misbehavior report was filed, or the manner in which the second disciplinary hearing was conducted, was procedurally defective. It is the fact that these events occurred at all, following the Appellate Division's decision in the first ...

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