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ALVARADO v. KERRIGAN

March 30, 2001

JOSE M. ALVARADO,[FN1] PLAINTIFF,
v.
H. KERRIGAN AND DON GALGANO, DEFENDANTS.



The opinion of the court was delivered by: Chin, District Judge.

MEMORANDUM DECISION

Plaintiff Jose Alvarado, an inmate in the New York State prison system, brings this action pursuant to 42 U.S.C. § 1983 against defendants H. Kerrigan and Don Galgano — respectively, a sergeant and a senior corrections counselor at Sing Sing Correctional Facility ("Sing Sing"). In his complaint, plaintiff alleges that defendants deprived him of a fair disciplinary hearing in violation of the Eighth and Fourteenth Amendments. Defendants move for judgment on the pleadings pursuant to Fed. R.Civ.P. 12(c). For the reasons that follow, defendants' motion is granted, and the complaint is dismissed.

BACKGROUND

A. Facts

The facts alleged by plaintiff are assumed to be true for purposes of this motion, and may be summarized as follows:

On August 8, 1997, when Sing Sing had been under "lockdown" for approximately four days, an unidentified Sing Sing corrections officer conducted a search of plaintiffs cell.*fn2 The search revealed no contraband. (Comp. ¶ 1). After the search, plaintiff was informed by either the same or another "unknown" corrections officer that the prison administration bad received information about plaintiff from a confidential informant and that, based on that information, plaintiff was going to be placed on "investigation status" keeplock pending investigation. (Id. ¶ 2).

The next day, August 9, plaintiff was issued a disciplinary report authored by defendant Kerrigan for assault on an inmate. The report, which is annexed to the complaint, stated as follows:

Based on an ongoing investigation regarding several serious inmate assaults in the HBB yard, and information provided by a confidential source, inmate Alvarado . . . did stab inmate Serrano [on August 4, 1997].

(Id. ¶¶ 3, 4, Ex. 1).

Thereafter, plaintiff requested "employee assistance" to help prepare for his Tier 3 Hearing.*fn3 (Id. ¶ 4). When he met with employee assistant G. Burns on August 13, plaintiff made a number of evidentiary requests, including: copies of all unusual incident reports; the opportunity to view the videotape; a written statement from Serrano indicating whether Alvarado had stabbed him; the names of individuals "in charge of the investigation"; all medical reports relating to the stabbing; a review of "how the confidential informant was determined to be a reliable source in the past"; and the identity of personnel "[w]ho determined that the [informant] was reliable." (Id. ¶ 5).

In response to these requests, Burns provided plaintiff with certain information. He stated that Serrano was no longer incarcerated at Sing Sing, and that there were no unusual incident reports relating to the stabbing. Burns further informed plaintiff that the "C.I.U." was in charge of the investigation, and that the reliability of the informant would be determined by the hearing officer. Burns also denied plaintiff access to medical reports. He did provide plaintiff with a log book entry for August 4, 1997 describing the assault. (Id. ¶ 6, Ex. 2). Plaintiff refused to sign off on the employee assistant's sheet because he was dissatisfied with the assistance Burns provided. (Id. ¶ 7).

On August 14, 1997, a Tier 3 hearing on the inmate assault charge was held. At the hearing, which was conducted by defendant Galgano, plaintiff' pleaded not guilty to the assault charge and informed the hearing officer of his dissatisfaction with Burns's assistance. (Id. ¶ 8). Galgano issued plaintiff the unusual incident report, which did not list plaintiff as one of the participants. (Id., Ex. 3). Plaintiff testified that he did not assault Serrano, and that he was in a different part of the HBB yard when the assault occurred. (Id. ¶ 9). In addition to testifying, plaintiff made several requests of Galgano. He asked to question witnesses — including Serrano, Tanco (another inmate), corrections officer Sierra and defendant Kerrigan — and asked to review the videotape. (Id. ¶¶ 9-10). Galgano denied plaintiffs request to view the videotape. and stated that he had watched the videotape and plaintiff was not on it. (Id.). Galgano then adjourned the hearing. (Id. ¶ 11).

The Tier 3 hearing resumed the next day, August 15. At that time, Kerrigan testified that he did not personally interview any of the confidential informants, and that when he arrived at the HBB yard, the incident was under control. (Id. ¶¶ 13-14). Kerrigan further testified that the "CIUs" ordered him to "write plaintiff up" for assaulting Serrano. (Id. ¶ 16). Two witnesses testified on behalf of plaintiff. The first witness, Correction Officer Sierra, stated that plaintiff was not involved in the assault, and that he (Sierra) had been focused on the assault as it occurred in the HBB yard. (Id. ¶ 17). The second witness, an inmate named Tanco, testified that plaintiff was with him at the time of the assault, approximately 200 feet from where the assault occurred. (Id. ¶ 18). Galgano adjourned the hearing to interview confidential sources. (Id. ¶ 19).

On August 20, 1997, plaintiff appeared for the third day of his Tier 3 hearing. At that time, Galgano denied plaintiffs request to interview Serrano on the ground that Kerrigan had interviewed Serrano and Serrano refused to cooperate or "make any statement regarding th[e] assault." (Id. ΒΆ 20, Ex. 5). Testimony from two confidential sources was taken (outside the presence of plaintiff), but Galgano refused to disclose the identity of the informants or the exact details of their testimony, citing the need to protect the identity and safety of the informants. (Id. Ex. 6). Based on this testimony, Galgano found plaintiff guilty of assaulting ...


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