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October 23, 2002


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


Plaintiff Mark Dixon ("Dixon"), proceeding pro se, brings this action under 42 U.S.C. § 1983 claiming violations of his constitutional rights under the Eighth and Fourteenth Amendments of the United States Constitution. Defendants, the Commissioner of the New York Department of Corrections ("DOCS") and other DOCS officials and corrections officers (collectively, "Defendants"), have moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure dismissing the claims against them. For the reasons set forth below, the Court grants the motion in its entirety.


On December 1, 1999, Corrections Officer J. Erns ("Erns") was attacked by inmate Motley ("Motley") at the Green Haven Correctional Facility ("Green Haven"). While Erns was attempting to subdue Motley, two other inmates struck Erns. One inmate was identified by Erns as Williams, but Erns could not identify the third. Corrections Officer M. Dickinson ("Dickinson") claimed to have witnessed the incident and identified Dixon as the third inmate who struck Erns. Dickinson wrote a misbehavior report charging Dixon with violating DOCS Disciplinary Rule 100.11 (Assault on Staff), Rule 106.10 (Refusal to Obey a Direct Order), and Rule 107.10 (Physical Obstruction and Interference).

On December 7, 1999, a Tier III disciplinary hearing on the charges against Dixon began at Green Haven. The hearing ended on December 15, 1999. The Deputy Superintendent of Green Haven, Defendant George Schneider ("Schneider"), presided as the hearing officer.

At Dixon's request, seven witnesses testified at the hearing, four inmates and three prison officers. Another witness, identified by Dixon as a "Latino officer," was not called. Dixon's request to call this additional witness was refused because Schneider did not know who this potential witness was.

At the hearings, Erns testified that he could not identify the inmate who struck him while he was subduing Motley. Later in the hearings, Erns was asked by Schneider whether he had any reason to believe that Dixon was the inmate who struck him. In response to this question, Erns answered "No, sir, I do not." (Dixon Dep. at 68-69.)*fn2 Dickinson positively identified Dixon as the inmate who struck Erns.

Schneider found Dixon guilty of all charges and sentenced him to 48 months in the Special Housing Unit ("SHU") and loss of various privileges. DOCS Commissioner, Glenn S. Goord ("Goord"), reduced the sentence to 36 months of SHU and loss of privileges, and the Office of Inmate Discipline ("OID") later affirmed the disciplinary hearing determination, but reduced Dixon's sentence in SHU to 18 months. Dixon then commenced a proceeding in the Supreme Court of the State of New York pursuant to Article 78 of the New York Civil Practice Law and Rules ("CPLR") challenging the determination of guilt on due process grounds. The state court ordered the annulment of the determination of guilt because the tape of the original hearing could not be located and directed a new disciplinary hearing. At the new disciplinary hearing, which took place on November 21, 2000, Dixon was found not guilty. Dixon was then released from SHU and transferred from the Upstate Correctional Facility ("Upstate") to Clinton Correctional Facility.

Dixon alleges that his Fourteenth Amendment due process rights were violated during the course of the disciplinary hearing because (i) Schneider did not locate and call the Latino officer Dixon had requested, (ii) the tape of the hearing was tampered with, obfuscating a statement made by Erns in response to the question as to whether Erns had any reason to believe Dixon was the inmate who struck him, which Dixon alleges is the "apex" of his defense, and (iii) Schneider disregarded Erns's answer to the aforementioned question.

In addition, Dixon alleges that the sentence ordered by Schneider as a result of the Tier III disciplinary hearing, 48 months of SHU and 48 months loss of privileges, was cruel and unusual punishment in violation of the Eighth Amendment.

The remainder of Dixon's claims arise from his alleged mistreatment during his SHU confinement, which Dixon also asserts violated his Eighth Amendment rights. In particular, Dixon alleges that he was (i) cut off from prison population, his computer refurbishing program, daily movement, religious services, legal research, medical showers and personal property, (ii) denied timely legal services and limited access to legal materials, (iii) denied annual teeth cleaning, (iv) subjected to second-hand smoke, (v) given limited food access, which caused him to lose weight, and (vi) packed up and transferred to SHU, resulting in a loss of property. Dixon also alleges that he suffered a physical attack from a cell mate. Dixon contends that all three Defendants are liable on each of the foregoing claims.

In their motion for summary judgment, Defendants allege that Dixon's due process claims cannot withstand summary judgment because (i) Erns's alleged exculpatory answer was not in actuality exculpatory and was, in any event, audible; (ii) regardless of Dixon's tampering claim, a recording of the hearing is not constitutionally mandated; and (iii) Schneider was not required to call a witness that Dixon could not identify. Defendants also allege that Goord and Green Haven Superintendent Christopher Artuz ("Artuz") are entitled to summary judgment on Dixon's due process claims because there is no evidence they had any personal involvement in the alleged constitutional violations.

In addition, Defendants argue that Dixon's Eighth Amendment claims cannot withstand summary judgment because, as a matter of law, the imposition of a disciplinary sentence of 48 months in SHU for the serious offense of assault on a prison official does not constitute cruel and unusual punishment. Furthermore, Defendants argue that Dixon's claims concerning the conditions of his confinement are subject to exhaustion requirements of the Prison Litigation Reform Act of 1986 ("PLRA"), 42 U.S.C. § 1994(e). Alternately, Defendants contend that Dixon's Eighth Amendment claims should be dismissed because there is no evidence that any of the Defendants had any personal involvement in the alleged constitutional violations.



To grant summary judgment, the court must determine that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c). The court is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment is inappropriate if, resolving all ambiguities and drawing all inferences against the moving party, the dispute about a material fact is "such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248-49, 106 S.Ct. 2505 (citing Adickes v. SH. Kress & Co., 398 U.S. 144, 159, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)). To defeat the motion, however, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). This is particularly true for those issues on which the nonmoving party would bear the burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

Although the same standards of summary judgment apply when a pro se litigant is involved, the pro se litigant should be given special latitude in responding to a summary judgment motion. See McPherson v. Coombe, 174 F.3d 276, 279 (2d Cir. 1999) (courts "read the pleadings of a pro se plaintiff liberally and interpret them `to raise the strongest arguments that they suggest.'") (quoting Burgos v. Hopkins, 14 F.3d 787, 789 (2d Cir. 1994)).


1. Tampering With the Tape of the Hearing

Dixon alleges that his due process rights were violated because the audio tape of his disciplinary hearing was tampered with. More specifically, he accuses the Defendants of tampering with the tape in order to obfuscate a particular answer given by Erns that Dixon alleges is the "apex" of his defense. (Compl. ¶¶ 26, 27.) Defendants counter that any allegation of tampering is merely conclusory. Furthermore, even assuming that the tape was altered, Defendants argue that the recording was not constitutionally required nor was any alleged omission prejudicial.

In his complaint, Dixon recounts the pivotal question to have been, "Do you think that [Dixon] was the inmate who struck you on that given day?" (Compl. ¶ 5.) However, presumably after review of the written transcript of the hearing,*fn3 Dixon concedes in his memorandum of law that the actual question asked to Erns by Schneider was whether Erns had "any reason to believe that Plaintiff struck you that day." (Pl.'s Mem. at 4.) All parties agree that the answer was, "No sir, I do not." (Def.'s Mem. at 5; ...

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