COX v. MALONE

The opinion of the court was delivered by: Shira A. Scheindlin, U.S.D.J.

OPINION AND ORDER

I. INTRODUCTION

Pro se plaintiff Keith Cox brings suit under Title 42, United States Code, section 1983 ("1983") for excessive use of force during a pat down frisk and for violation of his Fourteenth Amendment due process rights in connection with a disciplinary hearing. Defendants Deputy Superintendent of Administrative Services Sharon Hornbeck and Correction Officer Paul J. Simms*fn1 now move for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the following reasons, defendants' motion is granted.

II. FACTS

In 1999, Cox was incarcerated at the Mid-Orange Correctional Facility ("Mid-Orange") in Warwick, New York. See Prisoner Locator System, Ex. W to Prieto Aff. On August 27, 1999, at approximately 4:30 p.m., Cox was subjected to a pat frisk by Simms while exiting the "mess hall." See Inmate Misbehavior Report ("Report"), Ex. G to Prieto Aff. Upon hearing Cox state that he was going to leave bodies all over the place, Simms ordered plaintiff to put his hands up against the wall. See Id. After initially complying, Cox tried to turn away from the wall toward Simms. See Id. Simms then placed his right hand between plaintiff's shoulder blades and pushed him back to the wall. See Id. Simms completed the pat frisk without further incident. See Id.

Plaintiff alleges that during the pat frisk, Simms pulled his jacket over his head and pushed him hard enough to cause his face to hit the wall. See Complaint, Claim Statements, Ex. A to Prieto Aff., ¶ 1. Plaintiff further admits, however, that his face did not hit the wall as he turned to the right to avoid doing so. See Id. The only physical injury alleged by plaintiff is a hand abrasion that occurred while he was pulling his jacket off and moving to the right to avoid hitting the wall. See Id.; see also Deposition of Keith Thomas Cox ("Cox Dep."), Ex. B to Prieto Aff., at 47. Plaintiff admits that this abrasion was a minor injury akin to a "zipper cut." Id. at 74.

After the pat frisk was completed, Cox was returned to his housing unit. See Memorandum From Sergeant Ferebee to Lieutenant Zimmerman dated August 27, 1999, Ex. E to Prieto Aff. at 1-2. Shortly thereafter, Sergeant Ferebee requested that plaintiff be escorted to the Special Housing Unit ("SHU"). See id. at 2. Plaintiff was placed in cell number 6 where he was examined by Nurse M. Irving and photographed. See id. at 2. Nurse Irving noted that plaintiff had no obvious injuries. See Health Assessment Form dated August 27, 1999, Ex. I to Prieto Aff. Lieutenant Zimmermann eventually went to the cell and informed plaintiff that he was responsible for ordering his confinement to SHU.*fn2 See Complaint, Complaint Statements, Ex. A to Prieto Aff., ¶ 3. Before being placed in SHU on August 27, 1999, plaintiff was in general population.*fn3

Simms prepared an Inmate Misbehavior Report charging Cox with the following violations: Creating a Disturbance, Threats, Refusing a Direct Order, and Refusing Search and Frisk. See Report; see also Transcript of Disciplinary Hearing ("Hearing Tr."), Ex. C. to Prieto Aff., at 1. On September 1, 1999, a Tier III disciplinary hearing was commenced.*fn4 See Hearing Tr. at 1. Defendant Sharon Hornbeck ("H.O. Hornbeck") presided as the hearing officer. See Id. In response to the Misbehavior Report, which was read into the record, Cox pled not guilty to each of the four charges. See Id. at 2.

Before the hearing began, H.O. Hornbeck confirmed that plaintiff's request for assistance was granted. See Id. Correction Officer Altieri was appointed as plaintiff's assistant. See Assistant Form, Ex. K to Prieto Aff. On this form, Cox requested that the following individuals be interviewed as potential witnesses: Simms, Sergeant Ferebee and Lieutenant Zimmerman. See id. At the hearing, and upon inquiry from H.O. Hornbeck, plaintiff identified two inmates, Anthony McGee and Eric Priester, as witnesses on his behalf. See Hearing Tr. at 1-2. Both of these witnesses testified at the hearing. See id. at

After inmate McGee's testimony, H.O. Hornbeck adjourned the hearing until September 3, 1999, stating her intention to call Correction Officer J. Alvidge and Simms as witnesses on her behalf. See id. at 5. On that day, Alvidge testified but Simms did not. See id. at 5-6.

During the second phase of the hearing, plaintiff indicated that he no longer wanted Sergeant Ferebee as a witness and he signed a witness refusal form to that effect. See id. at 7-8. Lieutenant Zimmermann, whom plaintiff still wanted to testify, was then called as a witness. See id. at 8. After Zimmerman's testimony, the hearing was again adjourned until September 9, 1999, so that Priester could testify. See id. at 9. Plaintiff also testified on September 9, 1999. See id. at 11. Upon the conclusion of the testimony, H.O. Hornbeck asked plaintiff if he had any procedural objections at that time. See id. Plaintiff responded in the negative. See id.

On September 9, 1999, H.O. Hornbeck found plaintiff guilty of all four charges. See Superintendent Hearing Disposition, Ex. M to Prieto Aff.; see also Hearing Tr. at 12. As a result, plaintiff was sentenced to 180 days in SHU retroactive to August 27, 1999, three months loss of good time, and 180 days loss of packages, commissary, and phone privileges. See id. Plaintiff filed an administrative appeal of the decision the next day. See Appeal Form to Commission Superintendent's Hearing, EX. N to Prieto Aff. Plaintiff's appeal was denied and the hearing disposition was affirmed on November 2, 1999. See Review of Superintendent's Hearing, EX. O to Prieto Aff. The decision was ultimately reversed by Donald Selsky on March 13, 2000. See Reversal of Superintendent's Hearing/Expunction Order, EX. P to Prieto Aff. The following reason was given for the reversal: "Failure to interview witnesses requested by inmate. No written reason for denial provided." Id.

Plaintiff had already served 165 days in SHU at the Lakeview Correctional Facility in Bronxville, New York, before the hearing disposition was reversed. See Cox Dep. at 86. As a result of the administrative reversal, plaintiff's good time credit was restored. See Restored Good Time Adjustment, EX. Q to Prieto Aff. He was conditionally released on March 21, 2000. See Certificate of Release to Parole Supervision, EX. R to Prieto Aff. Cox drafted his Complaint, dated August 27, 2000, while released on parole. The Complaint was received by this Court's Pro Se Office on August 28, 2000, and was filed on November 1, 2000.

III. DISCUSSION

A. Summary Judgment ...