their Rule 56.1 Counter-Statement. See State Defendants'
Memorandum of Law in Support of Motion for Reconsideration, at 4.
The State Defendants argue that, if the Court properly had viewed
the statement, the Court could not have granted summary judgment
to the plaintiff on this claim.
A motion for reconsideration is governed by Local Civil Rule
6.3. A motion under this rule is appropriate where a party
believes that the Court has overlooked "matters or controlling
decisions" that might have influenced the earlier decision. Local
Civil Rule 6.3; see also Shamis v. Ambassador Factors Corp.,
187 F.R.D. 148, 151 (S.D.N.Y. 1999) (citing cases). Local Civil
Rule 6.3 is narrowly construed, and consideration of a motion
under the rule is committed to the sound discretion of the
district court. Shamis, 187 F.R.D. at 151.
In keeping with its design to prevent relitigation of matters
already plainly reviewed by the Court, the rule also requires
that a motion for reconsideration be served within ten days after
the docketing of the determination of the original motion. Local
Civil Rule 6.3. Moreover, no oral argument is available on a
motion for reconsideration and no affidavits may be filed unless
the court so directs. Id.
A. Violation of Local Rule 6.3
As a preliminary matter, the State Defendants point out in
their reply memorandum of law that the Plaintiff has failed to
comply with the strict mandates of Local Civil Rule 6.3.
Therefore, the State Defendants argue that their motion for
reconsideration should be granted, and that upon reconsideration,
the Court should deny Plaintiff's motion for summary judgment on
the due process claim.
Specifically, the State Defendants argue that the Plaintiff's
opposition papers, consisting solely of an affidavit submitted by
his attorney, do not comply with Local Rule 6.3. While the State
Defendants are correct that the Plaintiff was not permitted to
file an affidavit in opposition to the motion unless so directed
by the Court, the proper remedy for this violation is not simply
to grant the motion. Such a result would place undue importance
on the technical requirements of the Court's rule and would
prevent any meaningful review of the merits of the motion.
Rather, the remedy for a violation of Local Rule 6.3 is limited
to striking the affidavit and considering the motion for
reconsideration based solely on the movant's submissions.
The Court did not grant permission to the Plaintiff to file an
affidavit in opposition to the motion. Thus, the Court agrees
with the State Defendants that the submission of an affidavit in
place of a memorandum of law was improper. The Court therefore
strikes the affidavit of Plaintiff's counsel, and declines to
consider it in the determination of the motion.
B. Merits of the Motion for Reconsideration
An inmate in New York State "has a protected liberty interest
in continuing in a work release program." Kim v. Hurston,
182 F.3d 113, 117, (2d Cir. 1999). This liberty interest has been
clearly established law in New York since at least 1978, when the
United States Court of Appeals for the Second Circuit issued it
decision in Tracy v. Salamack, 572 F.2d 393, 395-96 (2d Cir.
1978). Kim, 182 F.3d at 120. Moreover, as pointed out by the
Second Circuit, "the minimal procedural due process requirements
of notice and reasons for terminating a protected liberty
interest have long been established." Id. (citing Wolff v.
McDonnell, 418 U.S. 539, 563-65, 94 S.Ct. 2963, 41 L.Ed.2d 935
(1974); Morrissey v. Brewer, 408 U.S. 471, 485-89, 92 S.Ct.
2593, 33 L.Ed.2d 484 (1972)).
Given the Second Circuit's reliance in Kim on both Wolff
and Morrissey, it is clear that the due process "notice"
requirement mandates that notice of the charges or reason for the
hearing be written, and that such notice be provided to the
inmate at least twenty-four hours in advance of a hearing.
Wolff, 418 U.S. at 563-64, 94 S.Ct. 2963. Additionally, the due
process "statement of reasons" requirement demands that the
decisionmakers provide a "`written statement . . . as to the
evidence relied on and reasons'" for the action taken. Id. at
564, 94 S.Ct. 2963 (quoting Morrissey, 408 U.S. at 489, 92
S.Ct. 2593). As somewhat prophetically stated by the Supreme
[w]ritten records of proceedings will thus protect
the inmate against collateral consequences based on a
misunderstanding of the nature of the original
proceeding. Further, as to the disciplinary action
itself, the provision for a written record helps to
insure that administrators, faced with possible
scrutiny by state officials and the public, and
perhaps even the courts, where fundamental
constitutional rights may have been abridged, will
Id. at 565, 94 S.Ct. 2963.
In relation to the "statement of reasons" requirement, and
relevant to the present dispute, the Second Circuit has raised
the bar even higher. "When procedural due process requires an
explanation of the ground for termination of a liberty interest,
it requires a statement of the actual ground, and if an initial
ground is changed, the person deprived of liberty is entitled to
know the new ground." Kim, 182 F.3d at 119. Thus, an individual
who has been deprived of a protectable liberty interest is
entitled to a complete and accurate statement of all the evidence
considered by the decisionmakers, and all the reasons for the
termination of that interest. Here, the State Defendants admit
that, at the very least, Plaintiff was entitled to twenty-four
hours notice of the TRC hearing and a statement of the reasons
for his removal. See Transcript, at 5, 17, 31; see also Civil
Pre-Trial Order, Schedule C, ¶ 53.*fn3
In relation to these procedural due process requirements, the
State Defendants contended at oral argument that this case
involves nothing more than an "unfortunate set of timing." See
Transcript, at 14. In relation to such timing, the State
Defendants acknowledge that on February 11, 1992 Plaintiff
appeared before the New York State Parole Board at Queensboro
Correctional Facility. State Defendants' 56.1 Statement, ¶ 18.
The following day, February 12, 1992, Plaintiff was advised that
he had been denied parole for an additional two years. Id., ¶
19. On the same day, Plaintiff was referred to the TRC because of
his two-year parole hold. Id. The TRC apparently sensed a great
deal of urgency regarding Plaintiff's parole hold, and brought
Plaintiff before the committee the very same day. Id., ¶ 28. By
letter dated the same day, February 12, 1992, Plaintiff was
advised that with defendant Superintendent Fischer's approval
(also apparently obtained the same day),
the TRC was recommending that Plaintiff be removed from temporary
work release. Id., ¶ 34. Within hours of the February 12, 1992
TRC hearing, Plaintiff was transferred from Queensboro to an
upstate facility. Plaintiff's Rule 56.1 Statement, ¶ 93; Civil
Pre-Trial Order, Schedule C, ¶ 57.
Given the rapid nature of these events, which included (1) a
parole hearing; (2) a TRC referral; (3) a TRC hearing; (4) a TRC
recommendation; (4) obtaining the superintendent's approval of
that recommendation; (5) writing a letter to Plaintiff informing
him of his removal from temporary work release; and (6)
transporting Plaintiff upstate to another facility, it was
impossible for the State Defendants to have given Plaintiff the
constitutionally required twenty-four hour written notice of the
TRC hearing. Nowhere do the State Defendants argue otherwise, and
in fact, they concede this point. See Transcript, at 23-24;
Civil Pre-Trial Order, Schedule C, ¶ 54.
Rather, the heart of the present motion for reconsideration
seems to lie with the "statement of reasons" requirement.
However, because the State Defendants have conceded that they did
not provide Plaintiff with twenty-four hours written notice
regarding the TRC hearing, during which his continued
participation in work release was in jeopardy, a constitutional
violation occurred. An inmate must receive both notice and a
statement of reasons for his removal. Wolff, 418 U.S. at
563-65, 94 S.Ct. 2963; Morrissey, 408 U.S. at 485-89, 92 S.Ct.
2593; Kim, 182 F.3d at 118, 120. There is no genuine issue of
material fact in this record regarding the lack of notice
provided to Plaintiff about the TRC hearing. This lack of notice,
standing alone, violated the due process clause of the Fourteenth
Amendment. See Wolff, 418 U.S. at 564, 94 S.Ct. 2963; Kim,
182 F.3d at 118-19. Therefore, summary judgment properly was
granted to the Plaintiff on this claim.
Nevertheless, the State Defendants argue that the Court
improperly held that Plaintiff did not receive a statement of
reasons for his removal from temporary work release. State
Defendants' Motion for Reconsideration, at 4. The State
Defendants claim that they properly refuted this factual
allegation in their 56.1 Counter-Statement, which referred to
their own 56.1 Statement. In particular, the State Defendants
refer to paragraphs thirty-two and thirty-three of their 56.1
The TRC believed that the stress associated with the
community unrest that would be placed on plaintiff
for an additional two years would not be in his best
interest. Lester Aff. at ¶ 10; DeLuca Aff. at ¶ 13.
Specifically, the TRC held: "[t]he committee
recommends that inmate Quartararo be removed from the
Temporary Release Program. The committee believes
that the best interest of the program, the community
and the inmate would not be best served by the inmate
remaining in Temporary Release. Due to the notoriety
of the inmate's offense, and the current community's
demonstrated concern, to place the inmate back into
the community would place an undue level of pressure
on him, and the program." Recore Aff., Exhibit A;
Lester Aff. at ¶ 10; DeLuca Aff. at ¶ 13.
State Defendants' 56.1 Statement, ¶¶ 32-33.
The State Defendants also cited paragraph thirty-four of their
56.1 Statement in their 56.1 Counter-Statement. This paragraph
presented the following statement of fact:
By letter dated February 12, 1992, plaintiff was
advised that the TRC, along with Superintendent
Fischer's approval, was recommending that he be
removed from TRP because "[i]t is not in the best
interest of the community and yourself in view of the
fact that you have been held 24 months by the Parole
Board." Lester Aff., Exhibit [B]. Defendant Director
Recore approved plaintiff's
removal from the TRP. Recore Aff. at ¶ 14.
State Defendants' 56.1 Statement, ¶ 34.