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United States District Court, Southern District of New York

March 25, 2003


The opinion of the court was delivered by: Kevin Nathaniel Fox, Magistrate Judge




Plaintiff Kerwin Johnson ("Johnson") brought this action pro se, pursuant to 42 U.S.C. § 1983. Johnson alleges that rights secured to him by the Fifth, Eighth and Fourteenth Amendments to the Constitution were violated by defendants Philip Coombe, Jr. ("Coombe"), former Commissioner of the New York State Department of Correctional Services ("DOCS"), John McGinnis ("McGinnis"), former Superintendent of the Downstate Correctional Facility ("Downstate"), and David Walsh ("Walsh"), a former Captain at Downstate.*fn1 Johnson alleges that as a result of the misconduct he ascribes to the defendants, he received disciplinary penalties, including confinement in the facility's Special Housing Unit ("SHU"), that were excessively harsh and atypical of the deprivation endured by prisoners as an ordinary incident of prison life.

Before the Court are the defendants' motion for summary judgment, made pursuant to Fed.R.Civ.P. 56, and plaintiffs motion to amend the complaint, made pursuant to Fed.R. Civ. P. 15. The motions are addressed below.


On July 18, 1995, while Johnson was a prisoner at the Shawangunk Correctional Facility, a fellow inmate, Larry Harris ("Harris"), was assaulted. An Inmate Misbehavior Report ("IMR"), filed on July 22, 1995, charged Johnson with having committed the assault in violation of a prison disciplinary rule proscribing such conduct. The IMR alleged that, while Harris was on his way to the dining area of the facility, he was summoned by another inmate, Derek Jones ("Jones"). As Harris approached Jones' cell, Jones allegedly called out, "Never mind." At that moment, the IMR charges, Johnson got hold of Harris and slashed him on his right ear. Johnson maintains that the IMR is incorrect and that "at no time did [he] assault inmate Harris." Shortly after this incident occurred, Johnson was transferred to Downstate.

On July 25, 1995, Johnson met with a facility assistant who was designated to help him prepare his defense to the disciplinary charge. On July 26, 1995, a Tier III disciplinary hearing was convened to address the charge made against Johnson in the IMR.*fn2 Walsh was designated to serve as the hearing officer. Johnson entered a plea of not guilty to the charge set forth in the IMR.

Johnson recalls that, at the start of the hearing, Walsh reviewed with him the names of the individuals he wished to call as prospective witnesses, including inmates Jones, Kevin Matthews ("Matthews"), Roger Simmons ("Simmons"), Larry Gardner ("Gardner"), Roger Sampson ("Sampson") and J. Pizzaro ("Pizzaro") and Corrections Officer Ferdell ("Ferdell").*fn3 Johnson contends that Walsh agreed to make arrangements to locate these prospective witnesses and to have them appear.

At the disciplinary hearing, Johnson, in response to questioning by Walsh, argued that the events of July 18, 1995, could not have occurred as they were described in the IMR. On that date, Johnson maintained, inmates were sent to the dining area of the facility in groups of four to fifteen individuals. Johnson and Harris were in different groups. Thus, at the time Harris allegedly approached Jones, Johnson was locked in his cell and could not possibly have got hold of Harris in order to assault him.

On August 1, 1995, when the Tier m disciplinary hearing resumed, Sampson, Gardner and Simmons testified on behalf of the plaintiff. All three witnesses confirmed Johnson's testimony regarding the procedure for sending inmates to the facility's dining area and the relative locations of the inmates' cells, and denied having seen Johnson assault Harris. Ferdell, who was not on duty during the incident in question, then testified concerning the facility's operations and structure. After Ferdell gave his testimony, the disciplinary hearing was adjourned for the day. When it resumed, on August 2, 1995, Jones testified on plaintiffs behalf. Jones, contradicting the account of the incident contained in the IMR, denied having summoned Harris to his cell. Moreover, he stated, he did not see Johnson assault Harris.

Thereafter, Walsh advised Johnson that testimony would be taken from certain confidential informants. Walsh invited Johnson to submit any questions he wished to have directed to the confidential informants, but warned Johnson that information obtained from the testimony of these individuals would not be disclosed unless it were determined that the informants' safety would not be jeopardized as a result. The confidential informants in this casey Harris and Sergeant Glen Looney, had been interviewed by Walsh on July 28, 1995. On August 2, 1995, Walsh interviewed Harris a second time and asked him the questions posed by plaintiff.

On August 3, 1995, Walsh found Johnson guilty of assaulting another inmate. Based upon that finding, Walsh imposed the following penalties on Johnson: confinement in the facility's Special Housing Unit ("SHU") for 715 days, loss of packages, commissary and phone privileges for 715 days, and loss of good time for 12 months. After plaintiff was advised of the hearing officer's determination, he stated that he objected to the "whole hearing."

Johnson contends that inmates Matthews and Pizzaro were never produced or interviewed at the disciplinary hearing and that no explanation was given concerning what efforts had been made to locate these witnesses or the reason for their exclusion from the proceedings. Johnson contends that the defendants' failure to provide him access to these witnesses deprived him of a fair hearing and consequently violated his Fifth and Fourteenth Amendment rights to due process.

Plaintiff appealed from the determination rendered by the hearing officer. His appeal was successful to the extent that the term of confinement and the concomitant period of lost privileges were reduced to 365 days. The record before the Court indicates that Johnson served 275 days of his sentence.

In February 1996, plaintiff commenced a New York Civil Practice Law and Rules Article 78 proceeding to have a court review the disciplinary hearing determination finding him guilty of violating a prison disciplinary rule. The Article 78 proceeding was transferred to the New York State Supreme Court, Appellate Division, Third Department, which annulled the determination of the disciplinary officer. In addition, the Appellate Division ruled that all references to the disciplinary charge brought against plaintiff be removed from his DOCS file and that any good time taken from him as a result of the disciplinary charge be restored. See Matter of Johnson v. Coombe, 244 A.D.2d 664, 664 N.Y.S.2d 372 (App. Div. 3rd Dep't 1997). In reaching its finding, the Appellate Division concluded that Johnson's constitutional and regulatory right to call witnesses had been violated. See id. at 664, 373.

Johnson contends that the penalty he received, due to the defendants' failure to safeguard his constitutional right to due process, was violative of the Eighth Amendment's proscription against cruel and unusual punishment. Moreover, plaintiff maintains that the sentence imposed upon him, 365 days in SHU, and the period of time actually served, 275 days, were atypical of the deprivation endured by prisoners as an ordinary incident of prison life.*fn4

Plaintiff filed the instant action on January 10, 2001.*fn5 By notice of motion dated April 4, 2002, plaintiff seeks permission to amend his complaint so that he might: (1) present his claims "more specifically and precisely;" and (2) add as a defendant Donald Selsky ("Selsky"), Director of the SHU and Inmate Disciplinary Program for DOCS.


Defendants' Motion for Summary Judgment

The defendants contend that they are entitled to summary judgment because: (a) plaintiff has not identified a protected liberty interest under the Fourteenth Amendment by establishing that his confinement in SHU constituted an atypical and significant hardship; (b) Walsh's failure to call Matthews and Pizzaro as witnesses during plaintiffs disciplinary hearing did not deprive plaintiff of his constitutional right to due process; and (c) the failure to call those witnesses at plaintiffs disciplinary hearing was harmless error. The defendants also maintain that summary judgment should be granted in their favor insofar as plaintiffs suit seeks money damages from the defendants in their official capacities.

1. Standard of Review

Summary judgment may be granted in favor of the moving party "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." See Fed.R.Civ.P. 56(c); see also D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir.), cert. denied, 524 U.S. 911, 118 S.Ct. 2075 (1998). When considering a motion for summary judgment, "[t]he court must view the evidence in the light most favorable to the party against whom summary judgment is sought and must draw all reasonable inferences in his favor." L.B. Foster Co. v. America Piles, Inc., 138 F.3d 81, 87 (2d Cir. 1998) (citing Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356 [1986]).

The moving party bears the burden of showing that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552 (1986). Once the moving party has satisfied its burden, the non-moving party must come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see Anderson v. Liberty Lobby. Inc, 477 U.S. 242, 250, 106 S.Ct. 2505, 2511 (1986).

In order to defeat a motion for summary judgment, the non-moving party cannot merely rely upon the allegations contained in the pleadings that raise no more than "some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586, 106 S.Ct. at 1355. "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment." Anderson, 477 U.S. at 247-48, 106 S.Ct. at 2510. The non-moving party must offer "concrete evidence from which a reasonable juror could return a verdict in his favor." Anderson, 477 U.S. at 256, 106 S.Ct. at 2514. Summary judgment should only be granted if no rational jury could find in favor of the non-moving party. See Heilweil v. Mount Sinai Hospital, 32 F.3d 718, 721 (2d Cir. 1994)

2. Due Process Claim

A prisoner asserting a denial of due process in connection with a prison disciplinary hearing that resulted in segregative confinement or loss of privileges "must make a threshold showing that the deprivation of which he complains imposed `an atypical and significant hardship on [him] in relation to the ordinary incidents of prison life.'" Sims v. Artuz, 230 F.3d 14, 22 (2d Cir. 2000)(quoting Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 2300 [1995]).

In determining whether a prisoner has a protected liberty interest in freedom from disciplinary confinement under due process principles, a court must examine the specific circumstances of the punishment. See Sims, 230 F.3d at 22. In particular, a court must examine "the extent to which the conditions of the disciplinary segregation differ from other routine prison conditions and . . . the duration of the disciplinary segregation imposed compared to discretionary confinement." Id. (quoting Wright v. Coughlin, 132 F.3d 133, 136 [2d Cir. 1998]); see also Cox v. Malone, 199 F. Supp.2d 135, 142 (S.D.N.Y. 2002).

Although the Second Circuit has not established a bright-line rule concerning the length or type of confinement that would give rise to an atypical and significant hardship, it has determined that the Sandin standard is not met unless the sanctions are onerous. See Jenkins v. Haubert, 179 F.3d 19, 28 (2d Cir. 1999). The Second Circuit has ruled that a prisoner's confinement for 305 days in standard SHU conditions "was `atypical' and a `severe hardship' within the meaning of Sandin," and has instructed the district courts to develop a detailed factual record in cases challenging segregative confinements of durations "within the range bracketed by 101 days and 305 days." Colon v. Howard, 215 F.3d 227, 229, 232 (2d Cir. 2000); see also Cox, 199 F. Supp.2d at 143 (citing cases); Lee v. Coughlin, 26 F. Supp.2d 615, 637 (S.D.N.Y. 1998) (finding that 376 days in SHU constituted an atypical and significant hardship).

Once a plaintiff has demonstrated a protected liberty interest, the question of whether the plaintiffs due process rights were violated still must be determined. See Santana v. Keane, No. 90 Civ. 6309, 1996 WL 465751, at *3 (S.D.N.Y. Aug. 14, 1996). Due process considerations require that, subject to the legitimate safety and correctional goals of a correctional facility, a prisoner should be permitted to call witnesses and to present documentary evidence at a disciplinary hearing. See Wolff v. McDonnell, 418 U.S. 539, 566, 94 S.Ct. 2963, 2979 (1974); Kalwasinski v. Morse, 201 F.3d 103, 108 (2d Cir. 1999).

Defendants argue that plaintiff can set forth no facts that suggest that the conditions of his confinement "dramatically departed" from those experienced by inmates placed in administrative or protective segregation. However, they concede that in cases challenging SHU confinement of durations "within the range bracketed by 101 days and 305 days," the Second Circuit has instructed the district courts to develop a detailed factual record. Here, the sentence imposed upon Johnson — 365 days in SHU — exceeds the 305-day period found atypical and significant in Colon, and the actual period of his segregative confinement — 275 days — falls within the range designated by the Second Circuit as requiring the development of a factual record. Therefore, based on its duration, the confinement appears to constitute a sufficient departure from the ordinary incidents of prison life as to require due process protections under Sandin. Accordingly, whether Johnson has a protected liberty interest in not being confined to SHU raises a genuine issue of material fact.*fn6

Defendants contend that, even if plaintiff were to meet his burden of showing a protected liberty interest in freedom from disciplinary confinement, his complaint must still be dismissed because the hearing officer's failure to call certain witnesses during the disciplinary proceeding did not deprive plaintiff of his constitutional right to due process. According to the defendants, plaintiffs failure to reiterate his request, made at the beginning of the hearing, to have Matthews and Pizzaro called as witnesses, and his subsequent failure to object to this procedural irregularity when the hearing concluded, constituted a waiver of his right to call witnesses in his defense.

While a hearing officer has the discretion to refuse to permit a witness to testify at a disciplinary hearing on the basis of "irrelevance" or "lack of necessity," Wolff v. McDonnell, 418 U.S. at 566, 94 S.Ct. at 2980, the record before the Court lacks any detailed factual recitation of the reasons for Walsh's failure to call the additional witnesses plaintiff sought to have testify on his behalf. See Fox v. Coughlin, 893 F.2d 475, 478 (2d Cir. 1990). Moreover, the record reveals that although Johnson was not given an opportunity to address this issue at the conclusion of the hearing, he clearly indicated that he objected to the proceedings as whole. Cf. Bedoya v. Coughlin, 91 F.3d 349, 352-53 (2d Cir. 1996)(finding no denial of due process where plaintiff failed to avail himself of an opportunity to request testimony from a witness and also failed to object to the close of the hearing). Therefore, the Court cannot say definitively that there is no triable issue of fact concerning whether the hearing officer's failure to call witnesses constituted a compensable constitutional due process violation. See Walker v. Bates, 23 F.3d at 656.

The Second Circuit has held that the outcome of a prison disciplinary proceeding may not be overturned because of a procedural error in the absence of "the normal appellate assessment as to whether the error was harmless or prejudicial." Powell v. Coughlin, 953 F.2d 744, 750 (2d Cir. 1991). Defendants assert that, although plaintiff is not seeking to overturn the outcome of his hearing, which the Appellate Division has, in any case, annulled, a determination of whether they are liable for damages pursuant to § 1983 requires deciding whether their actions were prejudicial to the plaintiff or were merely harmless error.

At his deposition on December 6, 2001, Johnson stated that he had expected to ask Matthews and Pizzaro the same questions he had addressed to the other witnesses who appeared at the disciplinary hearing, and that he had expected them to testify about whether: Johnson and Harris were out of their cells at the same time, Jones called out to Harris, and Johnson had been seen assaulting Harris. According to the defendants, Johnson's deposition statements establish that testimony by Matthews and Pizzaro at the disciplinary hearing would have been redundant. Therefore, they maintain, even if the misconduct ascribed to Walsh was procedural error, it was harmless error and, therefore, not prejudicial to the plaintiff.

In the instant case, neither Walsh nor any other prison official interviewed Matthews or Pizzaro to establish what their testimony would be. Consequently, Walsh could not have had any basis for concluding that their testimony would be redundant or cumulative. See Fox, 893 F.2d at 478. Plaintiffs speculations concerning what he might have learned from these witnesses had he been permitted to question them are not dispositive. Moreover, when a prison hearing officer fails to interview witnesses without providing a reason logically related to legitimate safety and correctional goals, "the burden is not upon the inmate to prove the official's conduct was arbitrary and capricious, but upon the official to prove the rationality of his position." Id. Therefore, under the circumstances, factual issues concerning whether the alleged misconduct of the defendants was harmless error preclude summary judgment for the defendants on plaintiffs due process claim. Accordingly, for the reasons set forth above, this branch of the defendants' motion should not be granted.

3. Immunity from Suit for Money Damages

The defendants contend that, to the extent plaintiff seeks to recover money damages from the defendants in their official capacities, their motion for summary judgment should be granted. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 70-71, 109 S.Ct. 2304, 2312 (1989) (finding that state officials sued in their official capacities are not "persons" under § 1983). This matter was previously addressed by your Honor; you granted defendants' motion to dismiss Johnson's claims insofar as they fell into this category. See Johnson v. Coombe, 156 F. Supp.2d at 277. Accordingly, that part of the defendants' motion which seeks summary judgment against plaintiff on these grounds should be granted.

Plaintiff's Motion to Amend the Complaint

Plaintiff seeks to amend his complaint in order to amplify the facts alleged in the original pleading and also to add Selsky as a defendant. The defendants oppose the motion. They argue that, while the proposed amended complaint presents essentially the same factual allegations as those contained in the original complaint, plaintiffs motion should be dismissed because any claims against Selsky are barred by the relevant statute of limitations.

1. Standard of Review

Rule 15(a) of the Federal Rules of Civil Procedure provides that "[a] party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served. . . . Otherwise a party may amend the party's pleading by leave of the court . . . and leave shall be freely given when justice so requires." Fed.R.Civ.P. 15(a); see also Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230 (1962).

The determination to grant or deny a motion to amend a complaint is within the discretion of the court. See New York State Nat'l Org. for Women v. Cuomo, 182 F.R.D. 30, 36 (S.D.N.Y. 1998). However, there must be good reason to deny such a motion. See Acito v. Imcera Group, Inc., 47 F.3d 47, 55 (2d Cir. 1995) (citing S.S. Silberblatt, Inc. v. East Harlem Pilot Block Bldg. 1 Hous. Dev. Fund Co., Inc., 608 F.2d 28, 42 [2d Cir. 1979]). "[U]ndue delay, bad faith or dilatory motive on the part of the movant . . . undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of [the] amendment" are valid reasons to deny the motion. Foman, 371 U.S. at 182, 83 S.Ct. at 230.

When a plaintiff seeks to add a new defendant under circumstances in which a claim(s) against that party is barred by the relevant statute of limitations, the proposed amendment must relate back to the date of the original complaint. See, e.g., Soto v. Brooklyn Correctional Facility, 80 F.3d 34, 35 (2d Cir. 1996). Under Fed.R.Civ.P. 15(c), an amendment adding a new defendant relates back to the date of the original pleading when: (1) the claim asserted in the amended pleading arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading; and (2) within 120 days of the filing of the complaint the party to be brought in by amendment:

(A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.
Fed.R.Civ.P. 15(c)(3); see also Soto, 80 F.3d at 35.

2. Addition of a New Defendant

In New York, the statute of limitations for actions brought under § 1983 is three years. See Owens v. Okure, 488 U.S. 235, 236, 251, 109 S.Ct. 573, 574, 582 (1989). Since plaintiffs cause of action accrued on November 13, 1997, see Johnson, 156 F. Supp.2d at 277, plaintiffs motion to amend his complaint to add a new defendant is time-barred unless the amendment relates back to the date of the original complaint. Under Fed.R.Civ.P. 15(c), plaintiff must show, inter alia, that he failed to name Selsky as a defendant due to a "mistake concerning the identity of the proper party," and that, but for that mistake, Selsky knew or should have known that he would have been so named.

The defendants argue that plaintiff cannot show that his initial failure to name Selksy as a defendant was a "mistake" for Rule 15(c) purposes. In Soto the Second Circuit held that a prisoner who failed to name individual corrections officers in his original § 1983 complaint had fulfilled Rule 15(c)'s "mistake" requirement because he was unaware of the technical requirements of the law and, thus, did not know that he needed to name individual defendants rather than an institutional defendant. 80 F.3d at 36-37. In that case, the plaintiffs complaint was found to be legally insufficient without the individual officers; consequently, the plaintiffs failure to name the individual defendants was considered to be not a matter of choice, but rather a mistake. See id.

In the instant action, plaintiff claims that he made a comparable "mistake of law" in to name Selsky in his original complaint. However, the concept of legal mistake identified in Soto does not extend to a situation in which the plaintiff knew the identity of the individual sought to be added as a defendant and the plaintiffs original complaint was legally adequate with respect to the defendants already named. See Martinez v. Robinson, No. 99 Civ. 11911, 2001 WL 498407, at *3-4 (S.D.N.Y. May 10, 2001)(citing Cornwell v. Robinson, 23 F.3d 694, 705 [2d Cir. 1994]); Gaines v. Gaston, No. 92 Civ. 0643, 1998 WL 574380, at *4 (S.D.N.Y. Sept. 8, 1998). Here, plaintiff evidently was aware that he was required to name individual defendants rather than an institutional defendant. Moreover, based on his correspondence with Selsky in August and September 1995, plaintiff knew that Selsky had presided over the appeal process following plaintiffs disciplinary hearing and, thus, was involved in the instant litigation. (Indeed, Selsky made the determination to modify plaintiffs sentence.) Furthermore, plaintiffs original complaint is legally sufficient with respect to the defendants already named.

Although it would appear that constructive notice of the commencement of the instant action may be imputed to Selsky, see Gleason v. McBride, 869 F.2d 688, 693 (2d Cir. 1989), plaintiffs failure to name him as a defendant in the original complaint does not constitute a "mistake" for the purposes of Rule 15(c).*fn7 Accordingly, plaintiffs proposed claim(s) against Selsky does not relate back to the date of the original pleading and is, thus, time-barred.


For the reasons set forth above, the defendants' motion for summary judgment should be: (i) denied with respect to plaintiffs due process claim; and (ii) granted to the extent that it seeks to dismiss the damage claims against the defendants in their official capacities. Plaintiffs motion to amend the complaint should be: (i) granted insofar as it seeks to amplify the facts alleged in the original pleading or to set forth those facts with greater specificity; and (ii) denied insofar as it seeks to add Selsky as a defendant.


Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also, Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Lewis A. Kaplan, 500 Pearl Street, Room 1310, New York, New York, 10007, and to the chambers of the undersigned, 40 Foley Square, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Kaplan. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).

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