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United States District Court, Southern District of New York

April 17, 2003


The opinion of the court was delivered by: Denise Cote, United States District Judge


Defendants, employees of the New York State Department of Correctional Services ("DOCS"), move to dismiss the complaint filed by counsel on behalf of inmate Rubin Sira ("Sira"). Sira is challenging the legality of his placement in a Special Housing Unit for six months following the finding at a prison disciplinary hearing that he had organized a Y2K strike by inmates at Green Haven Correctional Facility. Sira contends that the misbehavior report on which the hearing was based was impermissibly vague and that the hearing officer's reliance on informant information was improper. For the following reasons, the motion is denied.


On January 19, 2000, Sira was served with a misbehavior report ("Report") that alleged the following:

During the course of an investigation into a planned inmate demonstration at this facility in which inmates would conduct a work/program stoppage on or about January 1, 2000, Inmate Sira has been identified through confidential sources as having urged other inmates to participate, organized inmates to participate and threatened inmates to participate.
The Report identified the incident date as January 19, the location of the incident as Green Haven Correctional Facility, and the incident time as 10:15 a.m. The question "Were other inmates involved?", was marked "No."

The Report charged Sira with violations of prison disciplinary rules 104.12 and 102.10. Rule 104.12 states that inmates shall not "lead, organize, participate or urge other inmates to participate in work stoppages, sit-ins, lock-ins or other actions which may be detrimental to the order of the facility." 7 N.Y.C.R.R. § 270.2 (2003). Rule 102.10 states that inmates "shall not, under any circumstances make any threat, spoken, in writing, or by gesture." Id.

A Tier III disciplinary hearing was held and electronically recorded, beginning on January 26, 2000. At the initial session, Sira confirmed that he had been served with a copy of the Report on January 19 at 10:25 p.m. Sira was advised that the Hearing Officer would assess the credibility of any confidential source of information and the reliability of the information.

Sira noted the discrepancy in the Report between the incident date of January 19 and the alleged scheme concerning an event occurring on January 1. Sira objected that the Report was vague as to date, location (identifying the entire Green Haven Correctional Facility), did not identify who he had threatened, and did not identify any work stoppage that had actually occurred. Sira and the Hearing Officer discussed the fact that the prison had been locked down for a period of time and that thereafter many inmates had not attended their work assignments, or gone to the mess hall or to recreation. According to Sira, although the entire prison had been in "chaos", he had not violated any of the prison rules, and was where he was supposed to be on January 19. He specifically denied threatening or organizing anybody. He also denied urging anyone to participate in any violation of prison rules. He pointed out that after an initial period of adjustment upon his arrival at Green Haven, he had had a good disciplinary record.

On January 31, at the continuation of the hearing, Lt. Schneider testified in the plaintiff's presence that the plaintiff was a leader of a prison gang named the "Domincans", was essentially the "Captain" of "C Block" and that as a block "Captain" had enforced inmate participation in the Y2K demonstrations.*fn1 According to Lt. Schneider, Sira had been identified by several confidential sources during the period shortly before the lock down and up to the middle of January as having made threatening statements to groups of inmates who ended up participating in the strike. The prison was "locked down" from December 24 to January 5. Lt. Schneider explained that the charge was based on information gathered during an investigation that began on September 1, and was still ongoing, and that the Report bears the date January 19 because that was the date on which she "had made a determination" that Sira should be charged for the strike that had occurred at the facility.

After Lt. Schneider testified, the Hearing Officer took additional testimony and objections from Sira. Sira continued to protest that the Report failed to contain necessary information about the violation, including the date and location of the violation. He requested that he be told the substance of any confidential information upon which the Hearing Officer would rely, unless there was a finding that the disclosure would jeopardize the safety of an individual. The Hearing Officer informed Sira that he would assess the information provided by confidential informants.

In a proceeding which Sira did not attend, the Hearing Officer interviewed three officers regarding confidential information they had received concerning Sira's participation in the Y2K strike. Each officer described information received from one informant about Sira's participation in the strike. One officer's informant reported that someone else had said that Sira had been appointed as the captain of C block, with responsibility to enforce the strike. This informant had provided reliable information in the past when he believed that there were problems in the facility. A second officer described a letter he received from an inmate who had almost always provided correct information in the past. The letter indicates that Sira was involved in a demonstration by either threatening or urging other inmates to participate in it. The officer understood that the inmate had learned of this through conversations with other inmates, and had not witnessed Sira doing these things himself. A third officer described information received from an informant who had provided reliable information nine times out of ten in the past. This informant told the officer that he had seen Sira use strong arm tactics and threats of violence against inmates to coerce their participation in the demonstration during the final months of 1999. The Hearing Officer did not interview any of the officers' informants, but did make findings regarding the reliability of their information.

On February 8, the hearing continued. Sira objected again to not being advised of the substance of the confidential information reviewed by the Hearing Officer. Sira also pointed out that there was no record that he had ever refused to attend any program to which he was assigned, and that he had been incarcerated for almost seven years without any record of violence. Based on the testimony from Lt. Schneider and Sira, as well as confidential testimony and confidential documents, the Hearing Officer found that Sira was a leader of a planned inmate demonstration that had a detrimental effect on the prison. The Hearing Officer found Sira guilty of a violation of Rule 104.12, which forbids actions detrimental to the order of the facility, but not guilty of a violation of Rule 102.10, which forbids threats. Sira was sentenced to six months in a Special Housing Unit, a loss of telephone, packages and commissary privileges for six months, and a loss of six months of good time. Sira had not been informed about the existence and review of confidential documents until the Hearing Officer rendered his ruling.

Sira appealed the decision. Defendant Selsky, acting for defendant Goord, affirmed the decision. Sira's second appeal, filed with the assistance of counsel, resulted in a reversal on the ground that the "confidential evidence fails to support [the] charge." Since the plaintiff had already served the six months in SHU, the result of the reversal was essentially the reinstatement of six months of good time.

On February 28, 2002, Sira filed this action alleging four separate violations of the Due Process Clauses of the Fifth and Fourteenth Amendments to the United States Constitution.*fn2 The four alleged violations are a failure to (1) provide adequate notice to Sira of the charges, (2) provide Sira with evidence relevant to his defense, (3) assess the credibility and reliability of the confidential informants, and (4) disclose to Sira the existence of or reliance upon confidential documents prior to issuing a disposition.

Following the exchange of some documents, but before the completion of discovery, the defendants have moved to dismiss the complaint on the ground that they are protected by the doctrine of qualified immunity. The plaintiff's cross-motion for summary judgment has been withdrawn.


Although the defendants have moved to dismiss the action pursuant to Rule 12(c), Fed.R.Civ.P., both the defendants and the plaintiff submitted evidence in connection with this motion. A court can convert a motion to dismiss into a motion for summary judgment under such circumstances, see Rule 12(c), Fed.R. Civ. P., at least where the non-movant "should reasonably have recognized the possibility that the motion might be converted into one for summary judgment [and was not] taken by surprise and deprived of reasonable opportunity to meet facts outside the pleadings." Gurary v. Winehouse, 190 F.3d 37, 43 (2d Cir. 1999) (citation omitted); see also Groden v. Random House, Inc., 61 F.3d 1045, 1052-53 (2d Cir. 1995).

Summary judgment may not be granted unless the submissions of the parties taken together "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), Fed.R.Civ.P. The moving party bears the burden of demonstrating the absence of a material factual question, and in making this determination the Court must view all facts in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Celotex Corp v. Catrett, 477 U.S. 317, 323 (1986). When the moving party has asserted facts showing that the non-movant's claims cannot be sustained, the opposing party must "set forth specific facts showing that there is a genuine issue for trial," and cannot rest on the "mere allegations or denials" of his pleadings. Rule 56(e), Fed.R. Civ. P.; accord Burt Rigid Box, Inc. v. Travelers Property Cas. Corp., 302 F.3d 83, 91 (2d Cir. 2002). Thus, in determining whether to grant summary judgment, this Court must (1) determine whether a genuine factual dispute exists based on evidence in the record; and (2) determine, based on the substantive law at issue, whether the fact in dispute is material.

The doctrine of qualified immunity protects public officials from liability for damages in civil lawsuits "if their actions were objectively reasonable, as evaluated in the context of legal rules that were `clearly established' at the time." Poe v. Leonard, 282 F.3d 123, 132 (2d Cir 2002). Before reaching the issue of whether an official is entitled to qualified immunity, however, it is ordinarily appropriate to decide whether there has been a violation of the plaintiff's constitutional rights. Saucier v. Katz, 533 U.S. 194, 201 (2001); Poe, 282 F.3d at 132.

In deciding whether the alleged conduct was a violation of law that was clearly established at the time of the conduct, the contours of the legal right must have been "sufficiently clear" so that a reasonable official would have understood that what he did was a violation of that right. Anderson v. Creighton, 483 U.S. 635, 640 (1987); African Trade & Info. Ctr., Inc. v. Abromaitis, 294 F.3d 355, 360 (2d Cir. 2002). "This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent." Anderson, 483 U.S. at 640; see Poe, 282 F.3d at 135. In other words, the issue is whether the state of the law at the time of the alleged violation gave the defendant "fair warning" that his conduct was unconstitutional. Hope v. Pelver, ___ U.S. ___, 122 S.Ct. 2508, 2516 (2002). The existence of the right must have been supported by the decisional law of the Supreme Court and applicable circuit court. Abromaitis, 294 F.3d at 360.

Even if an official's conduct violated clearly established law, an official will still be entitled to qualified immunity if it was objectively reasonable for the official to believe that his actions did not violate the law. Anderson, 483 U.S. at 641; Kent, 312 F.3d at 573. The objective reasonableness test is met if "officers of reasonable competence could disagree" on the legality of the defendant's actions. Malley v. Briggs, 475 U.S. 335, 341 (1986); Kent, 312 F.3d at 573.

Assuming the existence of a liberty interest, prisoners are entitled to the protections of the Due Process Clause of the Constitution, although they are not entitled to all of the rights due to a defendant in a criminal prosecution. Wolff v. McDonnell, 418 U.S. 539, 556 (1974); Taylor v. Rodriguez, 238 F.3d 188, 192 (2d Cir. 2001). Punitive segregation in a special housing unit may trigger the minimal requirements of due process. Kalwasinski v. Morse, 201 F.3d 103, 108 (2d Cir. 1999); McKinnon v. Patterson, 568 F.2d 930, 936 (2d Cir. 1977) (collecting cases). As a result of the Supreme Court's decision in Wolff, these rights include advance written notice of the charges, a written statement of fact findings supporting the disposition and the reasons for any disciplinary action, and where possible, the right to call witnesses and to present documentary evidence. Wolff, 418 U.S. at 563-64, 566; Kalwasinski, 201 F.3d at 108. In Superintendent v. Hill, 472 U.S. 445, 455 (1985), the Supreme Court added that the disposition must be supported by at least "some evidence". See Kalwasinski, 201 F.3d at 108. In addition, the hearing officer must be fair and impartial. Id. (citing McCann v. Coughlin, 698 F.2d 112, 121-22 (2d Cir. 1983)).

Two of these rights are at issue in this action. The plaintiff contends that he was given inadequate written notice of the charges against him and that the disposition was not adequately supported by "some evidence".

1. Notice In Wolff, the Supreme Court required that an inmate be given twenty-four hours advance written notice of charges when the inmate is facing a loss of good time or solitary confinement. Wolff, 418 U.S. at 564. "Part of the function of notice is to give the charged party a chance to marshal the facts in his defense and to clarify what the charges are, in fact." Id. See also In re Gault, 387 U.S. 1, 34 (1967) (necessity for advance written notice before juvenile proceeding).

It has long been established that the notice must be in writing. Benitez v. Wolff, 985 F.2d 662, 665 (2d Cir. 1993). An oral recitation of the charges is not sufficient. Id. A fair chance to prepare for a hearing is "denied if the written charges are quickly taken away from the inmate and he is forced to prepare his defenses based largely on his memory of the factual details alleged and regulatory provisions invoked." Id. A discrepancy as to the precise nature of the actionable conduct that does not impair an inmate's ability to prepare a defense will not render notice constitutionally deficient. See Kalwasinski, 201 F.3d at 108.

The Second Circuit explained the function of advance written notice of a charge in McKinnon as follows:

Advance notice of charges has many salutary effects. It compels the charging officer to be more specific as to the misconduct with which the inmate is charged; it serves to narrow the inquiry at the hearing to the misconduct alleged; it informs the inmate of what he allegedly has done so that he can prepare a defense, if he chooses, to the specific charges set forth, based on whatever evidence he can muster, given the limited time available and the lack of an opportunity to interview or call witnesses; and it aids the fact finder to reach an informed decision. The notice requirement also assures a degree of fairness in the proceedings so that an inmate is not summarily brought before a three-member panel and required on the spot to explain vague charges set forth in a misbehavior report which he has never seen.
McKinnon, 568 F.3d at 940 n. 11. See also Benitez, 985 F.2d at 665. Written notice in advance of a hearing is essential since, as the Supreme Court observed in Mathews v. Eldridge, 424 U.S. 319 (1976), any hearing provided must be held "in a meaningful manner." Id. at 333 (citation omitted) (Social Security benefits case).

The defendants have not shown that they are entitled to judgment in their favor on the claim that they violated Sira's right under the Due Process Clause to advance written notice of the charges against him. The plaintiff has at the very least raised issues of fact as to whether the Notice provided him with a fair chance to prepare and present his defense. It did not identify with sufficient specificity the date or dates on which he violated the prison regulations, or the place or places at which he organized inmates. Since the Notice did not contain other specific information, such as the inmate or inmates who Sira organized, or what Sira did or said to organize inmates, the lack of detail about date and place was particularly detrimental to any effort to prepare a defense. In addition, the Notice contained information that was entirely at odds with the theory of the accusers. It identified the date of the violation as January 19, and indicated that no other inmates were involved.

For these same reasons, the defendants have not shown that they are entitled at this stage of the proceedings to qualified immunity. It was well established before 2000, through the jurisprudence of the Supreme Court and the Court of Appeals for the Second Circuit already cited, that the Due Process Clause requires that a prisoner be given adequate written notice of the charges against him in advance of a disciplinary hearing.

The defendants contend that errors or deficiencies in a written notice are not actionable so long as an inmate learns at the hearing of the basis of the charges against him. They are wrong. Adequate advance written notice is essential so that an inmate can have a meaningful opportunity to prepare a defense at the hearing. The case on which the defendants rely for their contention that notice at a hearing can cure defects in a written pre-hearing notice, Kalwasinski, 201 F.3d 103, is not to the contrary. In Kalwasinski, the written notice described a threat to kill an officer, while the hearing showed that the threat had been to cause the officer physical harm. Id. at 108. The written notice was detailed and specific, and the Second Circuit found that the "discrepancy as to the precise nature of the threatened harm did not represent a failure of specificity that would impair [the inmate's] ability to prepare his defense." Id.

Finally, the defendants contend that the Notice was as detailed as was possible given their legitimate concerns regarding prison security and inmate safety. Even if the law permits prison officials to provide what would otherwise be deficient notice out of a concern for the safe management of the prison facility, and the cases on which the defendants rely do not establish that proposition, the defendants have not shown that they are entitled to summary judgment based on that principle. They have not shown that it would have presented any danger to any inmate or the operation of the prison to provide Sira with notice, at a minimum, of the date and place of his conduct.

2. Reliance on Confidential Information The remaining claims by Sira arise from the Hearing Officer's reliance on informant information. A prison disciplinary finding against an inmate "must be supported by some evidence". Giakoumelos v. Coughlin, 88 F.3d 56, 61 (2d Cir. 1996). Because "[c]onfrontation and cross-examination present greater hazards to institutional interests," including "a high risk of reprisal within the institution", prison officials have discretion to restrict an inmate's right to confront and cross examine his accusers. Wolff, 418 U.S. at 567-69. Nevertheless, when an undisclosed informant's testimony is the basis for disciplinary action, there must be "some examination [by the hearing officer] of indicia relevant to an informant's credibility." Giakoumelos, 88 F.3d at 61 (citation omitted).

See also Zavaro v. Coughlin, 970 F.2d 1148, 1153 (2d Cir. 1992).

It is noteworthy in this case that the Hearing Officer's determination was reversed because the "confidential evidence fail[ed] to support" the charge that Sira was a leader of a demonstration. At a minimum, the plaintiff has shown that there is a question of fact as to whether there was "some" evidence to support the determination that Sira had violated a prison regulation.

While three officers each described informant information suggesting that Sira had been an organizer or enforcer of the Y2K strike, only one informant's information was described as being based on that informant's observations. The only informant who had witnessed Sira engaging in the conduct with which he was accused, however, gave only the most conclusory description of Sira's conduct. There was no specificity as to date, time, or place, who was present, what was said, or precisely what was done by Sira. While informant information need not have the precision or detail expected from witnesses at a criminal trial, the plaintiff has raised questions of fact whether the second hand information provided to the Hearing Officer was sufficiently detailed to constitute reliable evidence and to provide "some" evidence to support the finding of a violation.

For this same reason, it is inappropriate to find that the defendants are entitled to qualified immunity at this juncture of the proceedings. The law, as described above, was well established by 2000. Any violation determination had to be supported by some evidence. When that evidence was composed of informant information, the Hearing Officer had to conduct some examination to determine that relevant indicia indicated that the informant's information was reliable. The plaintiff has shown that he may be able to establish that no reasonable Hearing Officer could have found that the sole eyewitness' information was of sufficient detail or sufficiently corroborated to be reliable and thus constitute some evidence.


For the reasons stated above, the defendants' motion to dismiss is denied.


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