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