The opinion of the court was delivered by: TRAGER
Plaintiff, pro se, Floyd Charles filed this action pursuant to 42 U.S.C. § 1983, alleging the deprivation of his constitutional right to due process during his Tier III disciplinary hearing at the Arthur Kill Correctional Facility. At this hearing, plaintiff was found guilty of participating in an attack on another inmate, Henry Gordon, with a "knife-like object," and was sentenced to 600 days imprisonment in the Special Housing Unit ("SHU"), 600 days loss of packages, 600 days loss of phone and recreation, and a recommendation for 18 months loss of good time. See Def. Mem. Supp. Mot. to Dismiss Exh. C, Hearing Tr. ("Tr.") at 15. Specifically, plaintiff claims that 1) he was not allowed to call witnesses at his Tier III hearing; 2) an adverse witness was allowed to testify after the witness had been present during the proceeding; 3) plaintiff was improperly denied access to documentary evidence in the form of the misbehavior reports of the other inmates accused of the attack; 4) he was transferred from Arthur Kill Correctional Facility to Downstate Correctional Facility during the course of his proceeding (which prevented him from calling additional witnesses); 5) he was found guilty of the violations on the basis of insufficient evidence; and 6) the portion of the Tier III hearing transcript that contained testimony from the victim, inmate Gordon, was improperly excised. See Amend. Compl. Plaintiff seeks $ 1,000,000 in damages. See Amend. Compl. at 23-24.
Defendants moved to dismiss the amended complaint. Plaintiff moved for appointment of counsel, which was denied, and also for summary judgment. Because a significant documentary record had accumulated since the filing of defendants' motion to dismiss, that motion was converted to a motion for summary judgment by this Court with notice to plaintiff and an opportunity for him to respond. For the reasons stated herein, defendants' motion for summary judgment is granted and plaintiff's motion for summary judgment is denied.
At approximately 7:45 a.m. on April 28, 1994, inmate Henry Gordon was assaulted with a sharp "knife-like" object and suffered "deep penetrating wounds" that resulted in Gordon's hospitalization. See Def. Mem. Supp. Mot. to Dismiss at 2 & Exh. B. According to Gordon, he believed that this attack had something to do with a soccer game that had occurred on the evening of April 27. See Def. Mem. Supp. Mot. to Dismiss Exh. E, Gordon Statement.
On April 29, Sergeant Beatrice Kikendall interviewed Gordon at the hospital and showed him a photo lineup of approximately nine inmates who "were associated with the soccer game or the Rastafarian group, or Jamaican group . . . ." Tr. at 9. She stated at the Tier III hearing that she "tried to get very similar facial features and very similar looks . . . ." Tr. at 9-10. Although the inmates' names were affixed to their pictures, the Sergeant "fixed them so [Gordon] couldn't name anybody by name." Tr. at 9. Gordon picked three inmates, including Charles, out of the photo lineup. See Wells Aff. Exh. C, Gordon Tr. at 8, 11. According to Sergeant Kikendall, Gordon "pointed to Charles's picture and then refered [sic] to him as . . . he had a nickname but then he gave me his name - Floyd Charles." Tr. at 9. The Sergeant then wrote out a statement, signed by Mr. Gordon, which detailed the attack and asserted that Charles (also known as "Starkey") stabbed him in the stomach. See Def. Mem. Supp. Mot. to Dismiss Exh. E, Gordon Statement.
Charles's Tier III hearing was conducted by defendant Gerald A. Wells on May 2, 1994 at the Arthur Kill Correctional Facility and completed on May 10, 1994 at the Downstate Correctional Facility. See Tr.; Amend. Compl. at 11. Charles pled not guilty to each charge. See Tr. at 1. During the course of the hearing, Hearing Officer Wells granted Charles's request to call each witness he had listed on the Assistant Form: inmate Errol Peters, Lieutenant Nico, Sergeant Kikendall, and inmate Henry Gordon (the victim of the attack who testified later in the day telephonically from his hospital bed).
Plaintiff makes much of the fact that during the pendency of this case, defendants represented that inmate Gordon did not testify at the hearing. This representation was made based on the fact that the first official transcript of the hearing did not reflect testimony from inmate Gordon. See Ltr. to Ct. from Valerie Singleton, Esq., Attorney for Defendants, dated 9/8/95. Hearing Officer Wells states at the end of the first official transcript that at that time he was not permitting inmate Gordon to testify, but that he would consider permitting him to do so. There is no indication in the first official transcript that Gordon ever testified, as the first official transcript of the Tier III proceeding jumps from May 2, 1994 at 10:43 a.m. to May 10, 1994 at 9:16 a.m. However, because plaintiff insisted that inmate Gordon had, in fact, testified at the hearing, this Court requested that defendants present some response to plaintiff's allegation. As it happens:
Inmate Gordon did testify while hospitalized on May 2, 1994 via a speakerphone. Plaintiff was present during the testimony. This testimony would not be reflected in the hearing transcript. Inmate Gordon's testimony was recorded on another tape, which was mislabelled and believed to be lost. However, that tape was finally located and transcribed.
Wells Aff. dated 8/1/ 97 P 7 (citations omitted). Thus, there is an afternoon portion of the May 2, 1994 proceeding that was not captured on the first official transcript.
Both the first official transcript and the additional transcript reflect that at the commencement of each witness's testimony, Hearing Officer Wells instructed: "any questions he [Charles] would like to ask you will be put to me and I will determine as to whether or not I will pose said question to you." See, e.g., Tr. at 3; Wells Aff. Exh. C, Gordon Tr. at 1-4. The hearing transcript reflects that Hearing Officer Wells allowed all of Charles's questions, and truncated his examinations only once, when he believed that Charles was "interrogating" Sergeant Kikendall. Tr. at 10. However, even as to this witness, later in the morning Hearing Officer Wells asked Charles specifically if he wished to comment on the testimony of any of the witnesses "up to and including Sgt. Kikendall because there WAS something you wanted to say about Sgt Kikendall's testimony and, as I recall, I would not let you say it at that time." Tr. at 14 (emphasis in original). The only other comment bordering on an admonition occurred when Hearing Officer Wells encouraged plaintiff, who was questioning inmate Gordon, to "make your statement short. The guy is testifying while he is in a serious health condition, and I'm not going to disturb Mr. Gordon's health by putting him through a third degree. So make your questions short and to the point." Wells Aff. Exh. C, Gordon Tr. at 11. Gordon testified that plaintiff both started the altercation and stabbed him. See id. at 6-7, 11.