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July 27, 1999


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) (same).

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, 1999.


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 ...

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