The opinion of the court was delivered by: Robert L. Carter, District Judge.
Plaintiff Santiago Ramirez ("Ramirez") brought this action
against defendant Michael McGinnis ("McGinnis") asserting a
violation of his rights under the due process clause of the
Fourteenth Amendment, pursuant to 42 U.S.C. § 1983. Now before
the court is defendant's motion for summary judgment, and
plaintiff's cross-motion for summary judgment.
Ramirez is currently, and was at all times pertinent, an inmate
at Sing Sing Correctional Facility in Ossining, New York. He is
serving a prison term of 22 years to life. On February 11, 1987,
Ramirez was served with an inmate misbehavior report for
possessing a pointed steel rod in his cell, a charge that he
denied. A Tier Three Disciplinary Proceeding (the "Tier Three
hearing"), with defendant McGinnis as the presiding officer, was
subsequently held in February, 1987.
As part of his defense, Ramirez requested that the Informant be
called as a witness. McGinnis denied the request on the ground
that the questions that Ramirez had proposed for the Informant
were irrelevant. In addition, Ramirez claims that he attempted to
call Sergeant DeZayas, the prison official who received the
information from the Informant, as a witness. Plaintiff alleges
that this request was also improperly denied by defendant. In a
determination dated February 19, 1987, McGinnis found Ramirez
guilty of possessing a contraband weapon and imposed a penalty of
60 days confinement to Sing Sing's Special Housing Unit ("SHU"),
loss of telephone and commissary privileges for those 60 days,
and loss of one month of "good time" credit.
On February 23, 1987, Ramirez appealed McGinnis' determination
to the Special Housing/Inmate Disciplinary Program Office.
Plaintiff's asserted basis for the appeal was McGinnis' refusal
to call the Informant as a witness or to explain his refusal in a
written statement. McGinnis' determination was affirmed on April
17, 1987. Plaintiff subsequently brought an Article 78 proceeding
in New York State Supreme Court. On November 30, 1987, after
Ramirez had served his 60 day sentence in SHU, the New York
Supreme Court annulled McGinnis' determination on the ground that
plaintiff's requests to hear testimony from the Informant and
Sergeant DeZayas were improperly denied. Accordingly, the Court
restored the "good time" credits lost by Ramirez, and ordered
that Ramirez be reinstated to the status he enjoyed prior to the
Tier Three hearing. The decision was not appealed.
Ramirez commenced the instant action for compensatory and
punitive damages, pursuant to 42 U.S.C. § 1983, on August 19,
1987. On February 21, 1992, defendant moved for summary judgment
on the grounds that he enjoyed absolute immunity from the suit,
and that his denial to call the requested witnesses did not
violate plaintiff's due process rights. Plaintiff filed a
cross-motion for partial summary judgment, asserting that the
previous Article 78 proceeding in state court precluded
litigation of issues previously determined. In a Report and
Recommendation dated October 14, 1992, Magistrate Judge Sharon E.
Grubin rejected defendant's absolute immunity defense, but
recommended that defendant's summary judgment motion be granted
because plaintiff had received a fair hearing. Magistrate Grubin
also recommended that plaintiff's motion be denied, holding that
the state court litigation did not have a preclusive effect on
this federal action.
Ramirez timely filed objections to Magistrate Grubin's Report
and Recommendation. In an Opinion and Order dated March 31, 1993,
District Judge Mary Johnson Lowe adopted the Magistrate's
recommendation that plaintiff's motion be denied. See Ramirez v.
Selsky, 817 F. Supp. 1090 (S.D.N.Y. 1993) (Lowe, J.). On the
issue of defendant's summary judgment motion, Judge Lowe adopted
the Magistrate's dismissal of defendant's absolute immunity
defense. However, Judge Lowe declined to adopt the conclusion
that there was no triable issue as to whether defendant violated
Ramirez's due process rights. Accordingly, Judge Lowe denied both
plaintiff's and defendant's motions for summary judgment, and set
the matter down for trial.
On August 22, 1994, parties submitted their Joint Pre-Trial
Order, and the court placed the case on its ready-trial calender.
Before the case could come to trial, however, the United States
Supreme Court issued its opinion in Sandin v. Conner,
515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), that modified the
analysis under which federal courts determine whether the
inmate's segregated confinement implicates a liberty interest. On
June 16, 1997, Judge Lowe ordered additional briefing on the
issue of whether Ramirez's disciplinary confinement in SHU
encroached upon a liberty interest under Sandin, and under
Miller v. Selsky, 111 F.3d 7 (2d Cir. 1997) (further explaining
Sandin), and Brooks v. DiFasi, 112 F.3d 46 (2d Cir. 1997)
On April 6, 1998, defendant filed a motion for summary
judgment, pursuant to Rule 56, F.R. Civ. P., asserting that under
Sandin, Ramirez could not establish a liberty interest.
Plaintiff subsequently filed a cross-motion for partial summary
judgment. Plaintiff also asserted that dismissal was unwarranted
in light of defendant's failure to produce responsive documents
in discovery. The case was reassigned to this court on April 14,
A. Summary Judgment Standard
Under Rule 56(c), F.R. Civ. P., summary judgment is rendered
when "the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and the
moving party is entitled to a judgment as a matter of law."
"[T]he substantive law will identify which facts are material . .
. [and] [o]nly disputes over facts that might affect the outcome
of the suit under the governing law will properly preclude the
entry of summary judgment." Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The
burden of showing that no genuine issue of material fact exists
rests on the party seeking summary judgment. See Chambers v. TRM
Copy Centers Corp., 43 F.3d 29, 36 (2d Cir. 1994). Furthermore,
all ambiguities must be resolved and all inferences drawn in
favor of the party against whom summary judgment is sought. See
Gallo v. Prudential Residential Services, 22 F.3d 1219, 1223 (2d
Cir. 1994). Thus, "not only must there be no genuine issue as to
the evidentiary facts, but there must also be no controversy
regarding the inferences to be ...