The opinion of the court was delivered by: Kevin Nathaniel Fox, Magistrate Judge
REPORT and RECOMMENDATION
TO THE HONORABLE LEWIS A. KAPLAN, UNITED STATES DISTRICT 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. ...