with a copy of the disposition and notified plaintiff that he had the right to appeal. Id. at 16.
In order to determine whether an award of damages pursuant to § 1983 is appropriate, a two-pronged inquiry must be conducted: first, whether plaintiff had a protected liberty interest in not being confined to SHU for 600 days; and, if so, second, whether plaintiff suffered the deprivation of that liberty interest without due process of law. See Bedoya v. Coughlin, 91 F.3d 349, 351-52 (2d Cir. 1996) (citation omitted).
Subsequent to Sandin v. Conner, 515 U.S. 472, 132 L. Ed. 2d 418, 115 S. Ct. 2293 (1995), courts have suffered some consternation seeking to determine what duration and condition of confinement constitutes an "atypical and significant hardship" such that it triggers a protected liberty interest. See, e.g., Gonzalez v. Coughlin, 969 F. Supp. 256 (S.D.N.Y. 1997); Duncan v. Keane, 1997 U.S. Dist. LEXIS 8421, No. 95- CV-1090, 1997 WL 328070 at *2 (S.D.N.Y. June 13, 1997) (collecting cases); Lee v. Coughlin, 1997 U.S. Dist. LEXIS 5224, No. 93- CV-8952, 1997 WL 193179 at *2 & n.2 (S.D.N.Y. April 18, 1997) (collecting cases). Assuming that 600 days' confinement in SHU does implicate a protected liberty interest under Sandin, nonetheless, plaintiff here does not succeed with his § 1983 claim because his Tier III hearing afforded him all the process he was due.
In Wolff v. McDonnell, 418 U.S. 539, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974), the Supreme Court articulated the protections that must be afforded prisoners in disciplinary proceedings: prisoners must be given twenty-fours hours notice of the charges against them, a written statement of the evidence relied on by the hearing officer, and the factual predicates for the punishment imposed by the hearing officer. See Moolenaar v. Finn, 1996 U.S. Dist. LEXIS 2915, No. 94- CV-6778, 1996 WL 112200 (S.D.N.Y. March 14, 1996) at *3 (citing Wolff, 418 U.S. at 563-65 (1974)). In addition, "the inmate facing disciplinary proceedings should be allowed to call witnesses and present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals." Wolff, 418 U.S. at 566.
Plaintiff makes five general allegations about the manner in which his due process was violated during his hearing. First, he claims that by excising the portion of the transcript containing Gordon's testimony, defendants deprived him of due process. Although it is unfortunate that the tape of inmate Gordon's testimony was lost, there is no evidence to suggest that defendants in any way intended to mislead the court or plaintiff. If anything, now that this portion of the hearing transcript has been located, it provides even more evidence that Charles's due process rights were protected. In light of Gordon's weakened condition in the hospital, the fact that Hearing Officer Wells granted plaintiff's request that inmate Gordon testify provides compelling evidence that the hearing officer sought to protect plaintiff's due process rights and that they were more than adequately protected during his hearing.
Plaintiff also claims that defendants refused to allow him to call witnesses. However, the transcript clearly reflects that each witness that plaintiff had listed on his Assistant Form was permitted to testify (including inmate Gordon). When asked at the end of the morning session on May 2 whether he had anything additional to present, plaintiff asked only that Gordon be permitted to testify. Hearing Officer Wells complied with that request. At the conclusion of Gordon's testimony, there is no indication that plaintiff asked for any additional witnesses. Although there is an indication that Hearing Officer Wells was wanted elsewhere, see Wells Aff. Exh. C, Gordon Tr. at 12, plaintiff made no subsequent requests for witnesses and asked only that defendant Wells read out the misbehavior reports of the other inmates accused in connection with the attack. See id. at 13. See Bedoya v. Coughlin, 91 F.3d 349, 353 (2d Cir. 1996) (holding that where plaintiff had indicated that he wanted a witness to be summoned at the beginning of his hearing, "the plaintiff's failure to request the witness's appearance prior to the close of the hearing, and his acquiescence in the hearing officer's decision to end the hearing, constituted a waiver of any right he may have had to call the witness."). Moreover "federal and state courts in this circuit have recognized that an inmate's silence can constitute a waiver of his due process right to request witness testimony at a disciplinary hearing." Id. at 352 (citing cases). Only after hearing Wells's decision did plaintiff belatedly raise the issue of wanting this new witness. Plaintiff's "bald assertion" in his papers that he was deprived of the right to call a witness is meritless. See Moolenaar v. Finn, 1996 U.S. Dist. LEXIS 2915, No. 94- CV-6778, 1996 WL 112200 at *4 (S.D.N.Y. March 14, 1996).
Although plaintiff insists that he had intended to call this hearing officer who would provide him with an alibi, it is patently incredible that the name of this officer - who would have completely exculpated plaintiff - would not have appeared on plaintiff's Assistant Form or that his name would not have been mentioned at any prior point in the entire hearing. Thus, plaintiff's last-minute attempt to reopen the hearing on May 10, 1994 to call an additional witness, after Hearing Officer Wells had read his disposition into the record, does not present a genuine issue of material fact warranting the denial of summary judgment.
This finding is also probative of Charles's allegation that defendants violated his constitutional rights by permitting him to be transferred from Arthur Kill Correctional Facility to Downstate Correctional Facility during the course of his proceeding (which, he claims, prevented him from calling additional witnesses). Because there was no indication that plaintiff intended to call an additional witness, transferring him to another facility certainly did not deprive him of his due process to call such a phantom witness.
Plaintiff also complains that Hearing Officer Wells allowed an adverse witness to testify after he had been present during the proceeding. This is accurate, but it does not constitute a deprivation of due process. "Despite establishing minimal due process standards for prison disciplinary hearings, the Supreme Court has made clear that such hearings 'are not part of a criminal prosecution with the full panoply of rights due a defendant in such proceedings does not apply'." Greaves v. State of New York, 1997 U.S. Dist. LEXIS 7225, No. 95- CV-9725, 1997 WL 278109 at *3 (S.D.N.Y. May 22, 1997) (quoting Wolff v. McDonnell, 418 U.S. 539, 556, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974)). Moreover, Hearing Officer Wells did not rely on the testimony of this witness in his disposition. See Tr. at 15. The exclusion of witnesses is discretionary. But, even assuming that this testimony was improper, plaintiff was not prejudiced. Defendant Wells did not take it into account when making his determination regarding plaintiff's guilt.
Plaintiff also argues that Hearing Officer Wells found him guilty of participating in the attack on the basis of insufficient evidence.
In prison disciplinary hearings, only a 'modicum of evidence' is required. Ascertaining whether there is a 'modicum of evidence' to support a conviction after a disciplinary hearing does not require the Court to balance the evidence presented in Plaintiff's defense against the evidence supporting Plaintiff's conviction. The only relevant question is 'whether there is any evidence in the record that could support the conclusion' reached by Defendant.
Hutchinson v. Blaetz, 1996 U.S. Dist. LEXIS 9171, No. 94- CV-3695, 1996 WL 374164 at *5 (S.D.N.Y. July 1, 1996) (quoting Superintendent v. Hill, 472 U.S. 445, 455-56, 86 L. Ed. 2d 356, 105 S. Ct. 2768 (1985)). Here, there was ample evidence on the record to support Wells's determination of guilt. Sergeant Kikendall testified that inmate Gordon identified plaintiff as his attacker; Gordon testified to such on the record; and Corrections Officer Gatti testified that Gordon had provided reliable information in the past.
Finally, Charles argues that Hearing Officer Wells denied him documentary evidence in the form of the misbehavior reports of the other inmates accused of the attack. However, plaintiff stated on the record that "you don't have to give them to me, Sir." Tr. at 6. Thus plaintiff waived his request for the documents themselves. Moreover, at plaintiff's behest, Hearing Officer Wells stipulated on the record that the date on plaintiff's misbehavior report was a day after those on the other reports.
See id. at 7. Wells also clearly stated that furnishing the reports to plaintiff would not be appropriate, although he would review and consider each one carefully. See id. Thus, this failure to actually hand over the documents to plaintiff does not constitute a deprivation of due process. Nor do any of plaintiff's other claims.
As there is no genuine issue of material fact, defendants' motion for summary judgment is granted and plaintiff's motion for summary judgment is denied. The Clerk of the Court is instructed to enter judgment in accordance with these instructions and close the case.
Dated: Brooklyn, New York
November 18, 1997
David G. Trager
United States District Judge