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MUHAMMAD v. PICO

August 5, 2003

ISMAA'IYL F. MUHAMMAD, PLAINTIFF, AGAINST JOSE PICO, LT. DANIEL CONNOLLY, BETTY EASTER, FAHIYM MAHMUD (MAHMOOD), DONALD SELSKY, SGT. JOHN DOLAN, & NORMAN BALTUCH, DEFENDANTS


The opinion of the court was delivered by: Andrew Peck, Magistrate Judge

OPINION AND ORDER

Pro se plaintiff Ismaa'iyl F. Muhammad, an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), brings this action pursuant to 42 U.S.C. § 1983, alleging violations of his constitutional rights by various DOCS employees. Muhammad alleges that (1) Fahiym Mahmud, Lieutenant Daniel Connolly, and Sergeant John Dolan conspired to violate his First Amendment free exercise of religion rights; and that (2) defendants Jose Pico, Lt. Connolly, Sgt. Dolan, Donald Selsky, Betty Easter, and Norman Baltuch violated his Fourteenth Amendment procedural due process rights in connection with a Tier III disciplinary hearing. (See generally Dkt. No. 2: Compl.; Dkt. No. 23: Am. Compl. ¶ 4 "Statement of Claim.") After the close of discovery, defendants Pico, Connolly, Easter, Mahmud, Selsky, and Dolan moved for summary judgment. (Dkt. Nos. 36-47: Defs.' S.J. Mot. Papers.) Defendants Easter, Dolan, and Baltuch also [ Page 2]

moved to dismiss pursuant to Fed.R.Civ.P. 12(b)(1), (2), and (6), claiming (1) lack of personal involvement by Easter; (2) lack of personal jurisdiction over Dolan; and (3) expiration of the statute of limitations as to Baltuch. (Dkt. Nos. 50-51: Notice of Mot. to Dismiss & Br.)

The parties have consented to disposition of this case by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 28.)

For the reasons set forth below: (1) Muhammad's free exercise and conspiracy claims are dismissed without prejudice for failure to exhaust administrative remedies; (2) defendants' summary judgment motion on Muhammad's due process claim is denied due to lack of evidence in the record and issues of material fact in dispute; (3) defendants Sgt. Dolan and Lt. Connolly are granted summary judgment dismissing Muhammad's due process claim for lack of personal involvement; (4) defendant Easter's motion to dismiss Muhammad's due process claim is denied; and (5) defendant Baltuch's motion to dismiss Muhammad's due process claim is denied because the amended complaint relates back to the timely-filed original complaint.

FACTS

Muhammad, who is currently incarcerated at Clinton Correctional Facility, was an inmate at Green Haven and Downstate Correctional Facilities when the events at issue took place in May 1997. (Dkt. No. 23: Am. Compl. ¶ 4 "Statement of Claim"; Dkt. No. 5: Muhammad 2/21/02 Aff. ¶ 3; Dkt. No. 40: Defs. 56.1 Stmt. ¶¶ 18, 22, 25.) Muhammad is serving a 1984 sentence of twenty-five years to life imprisonment for second degree murder. (Dkt. No. 38: Singleton Aff. Ex. B: Muhammad Dep. at 12-13.) [ Page 3]

The Defendants

At the time of the events at issue, defendants Connolly, Mahmud, and Dolan were employed at Green Haven: Connolly as a Lieutenant (Dkt. No. 41: Connolly Aff. ¶ 1), Mahmud as a Muslim chaplain, or imam*fn1 (Dkt. No. 38: Singleton Aff. Ex. B: Muhammad Dep. at 40), and Dolan as a Sergeant (Dkt. No. 42: Dolan Aff. ¶ 1).*fn2 Defendants Easter and Baltuch were employed at Downstate: Easter as a Corrections Officer*fn3 (Dkt. No. 21: 2/14/03 Conf. Tr. at 11), and Baltuch as a Corrections Counselor (Dkt. No. 44: Pico Aff. ¶ 7). Defendant Pico was a DOCS Commissioner's Hearing Officer (Pico Aff. ¶ 2), and defendant Selsky was (and still is) DOCS' Director of Special Housing/Inmate Disciplinary Program (Dkt. No. 45: Selsky Aff. ¶ 1).

Inmate Hostile Reaction to the Cell Shop Program

Green Haven Correctional Facility has an Industry Program employing two hundred to two hundred fifty inmates. (Dkt. No. 43: Smith Aff. ¶ 5.) In May 1997, Green Haven's work shop introduced a new program, employing thirty to forty-five inmates trained in welding, plumbing, [ Page 4]

mechanical engineering, and electrical wiring, to install prefabricated modular prison cells.*fn4 (Id. ¶¶ 4, 5, 8.) Shortly after the introduction of the cell shop program, many inmates refused to continue to participate in the Industry Program. (Id. ¶ 8.) George Smith, the Senior Industrial Superintendent responsible for supervising the inmates employed in the cell shop, learned from some of the inmate employees that they were being harassed by other inmates and threatened with violence if they continued to build cells. (Id. ¶¶ 1, 8; see also Dkt. No. 41: Connolly Aff. ¶¶ 5-8.) According to Supt. Smith, the reason given for the threatened violence was that "the pre-fabricated cells being constructed would eventually be used to house additional prisoners, including family members of current inmates at Green Haven." (Smith Aff. ¶ 9.)

Supt. Smith stated that the threats against these inmates created a very tense atmosphere and led to a sharp decline in the cell shop's recruitment of new inmates. (Id. ¶ 11.) What was once a sought-after, high-paid work detail with little turnover became a source of serious concern for DOCS, with the inmate and civilian employees fearful of being assaulted by inmates opposed to the cell shop program. (Id. ¶¶ 5, 11-13.) As a result of the threats, Green Haven officials were forced to take measures to protect the cell shop inmate-employees, including moving them from the general population to a self-contained unit, and partitioning off the assembly shop with a curtain to prevent any other inmates from looking into the shop and determining who was working in the cell shop. (Smith Aff. ¶ 10; Dkt. No. 41: Connolly Aff. ¶ 9.) Sergeant George Schwartzman and [ Page 5]

defendant Sgt. John Dolan were ordered to commence an investigation to identify the instigators of the inmate work stoppage and the" `enforcers'" who carried out the threats. (Connolly Aff. ¶ 6.)

The Investigation

In the course of their investigation, Sgt. Schwartzman and Sgt. Dolan interviewed a number of confidential informants and obtained information regarding the threats. (Dkt. No. 42: Dolan Aff. ¶¶ 5-6.) According to Sgt. Dolan, these "informants came forward because they did not like the idea of being terrorized" and because "some inmates in the cell shop wanted the opportunity to earn the higher wages;" the "informants were not offered any favors by the administration" in exchange for the information. (Id. ¶ 8.) According to Sgt. Dolan, the informants claimed that Muhammad was one of about ten inmates who played a part in the "Terror Campaign." (Dolan Aff. ¶ 6.) Specifically, they stated that Muhammad was "one of those instigating a demonstration to stop inmates from building cells." (Id.) Lt. Connolly, who was responsible for supervising all uniformed officers (Dkt. No. 41: Connolly Aff. ¶ 1), reviewed the investigation and verified that the confidential informants were credible and reliable, and that independent sources corroborated the information they provided. (Connolly Aff. ¶ 6.) Lt. Connolly personally interviewed some of the cell shop inmate-employees to confirm the investigation's findings. (Id. ¶¶ 7-8.)

Following Lt. Connolly's review of the investigation, he concluded that Muhammad and nine other inmates were involved in the "Terror Campaign." (See Connolly Aff. ¶ 10 & Ex. A: 5/8/97 Lt. Connolly Memo to Superintendent Artuz; see also Dkt. No. 42: Dolan Aff. ¶ 6.) As a [ Page 6]

result, Sgt. Dolan issued Muhammad an "Inmate Misbehavior Report" on May 9, 1997, charging him with a violation of Rule 104.12.*fn5 (Dolan Aff. ¶ 7.) The Misbehavior Report stated that:

During an interview with an inmate as to why he would not work in the metal assembly shop (cell shop), he informed Sgt. Sch[w]artzmann and myself on a confidential basis, that various inmates and groups were making threats against those who would build cells. Remarks such as "anyone who would build cells should/would be cut." "You build cells, we will burn yours." Inmate MUHAMMAD 84 A. 3231 was identified as one of the inmates in this campaign of terror by this source. Due to the fact that this source was unproven, other sources who have proven reliable in the past were questioned in regards to this situation. These sources confirmed inmate MUHAMM[A]D's involvement in this campaign of terror.
This has been an ongoing investigation.

(Dolan Aff. Ex. A: 5/9/97 Inmate Misbehavior Report.) Because the administration perceived the threats and their effect on the cell building program to be a serious problem for the facility, Christopher Artuz, then Superintendent of Green Haven, directed that the instigators and enforcers be transferred to other correctional facilities. (Connolly Aff. ¶ 11 & Ex. B; see also Dolan Aff. ¶ 9.)*fn6

Muhammad's Disciplinary Hearing, Sentencing, and Administrative Appeals

On May 10, 1997, all inmates believed to have been involved in the "Terror Campaign" were transferred out of Green Haven. (Dkt. No. 42: Dolan Aff. ¶ 9; see also Dkt. No. 41: Connolly Aff. ¶ 11.) Muhammad was transferred to Downstate Correctional Facility. (Dkt. No. 23: Am. Compl. ¶ 4 "Statement of Claim.") Also on May 10, Muhammad was served with a copy [ Page 7]

of the May 9, 1997 Misbehavior Report (Dkt. No. 44: Pico Aff. ¶ 7 & Ex. B at 2), which put him on notice that he would be receiving a Tier III disciplinary hearing*fn7 during which a hearing officer would "hear and determine allegations of rule violations contained in the misbehavior reports. . . ." 7 N.Y.C.R.R. § 252.2. Pursuant to 7 N.Y.C.R.R. § 254.4,*fn8 defendant Corrections Counselor Baltuch was assigned to provide Muhammad with employee assistance in preparing for the Tier III hearing. (Pico Aff. ¶ 7.) The misbehavior report was referred to the facility superintendent for designation [ Page 8]

of a hearing officer to conduct a Superintendent's Hearing (i.e., a Tier III hearing), and defendant Jose Pico was designated to preside over the hearing. (Pico Aff. ¶ 8.)

Muhammad's Tier III disciplinary hearing began on May 13, 1997 at Downstate Correctional Facility. (Pico Aff. ¶ 9 & Ex. C.) Muhammad pleaded not guilty to the charges (Pico Aff. Ex. C) and requested that the following Green Haven witnesses testify on his behalf: two correction officials, including defendant Lt. Connolly; the Industrial Superintendent in charge of the cell shop; defendant Easter; and six inmates. (Pico Aff. ¶ 10 & Ex. C.) Hearing Officer Pico called defendants Sgt. Dolan and Counselor Baltuch to testify. (Id.) According to Pico, Muhammad was allowed to question all witnesses except inmate Kevin Coppege, who refused to testify, and Corrections Officer Tabacnick, whose testimony Pico believed would have been redundant. (Pico Aff. ¶ 11.) See also 7 N.Y.C.R.R. § 254.5 (2002).*fn9 Hearing Officer Pico asserts that he independently verified the information obtained from the confidential informants and found that it was "very detailed and specific" and credible. (Pico Aff. ¶ 13.) Pico further found that Muhammad "was not able to contradict the information or the allegations" contained in the misbehavior report. (Id.) Pico found Muhammad guilty of demonstration and imposed a penalty of 730 days keeplock confinement, with an equivalent loss of package, commissary, and phone privileges. (Id. ¶ 14.)*fn10 [ Page 9]

Muhammad's contradictory testimony about the conduct of the Tier III hearing is discussed on pages 14-16 below.

According to DOCS personnel: under typical conditions of keeplock, Muhammad was to be confined to his cell for twenty-three hours per day with one hour of exercise outside his cell. (Dkt. No. 45: Selsky Aff. ¶ 6.)*fn11 Muhammad also could participate in an in-cell study program, with access to books and periodicals from the law library and general library, but he could not participate in any out-of-cell programs.*fn12 (Id. ¶ 9.) Muhammad, in contrast, states that while he could read his own books while in keeplock, he could not participate in DOCS' G.E.D. program or other formal DOCS study programs. (Dkt. No. 38: Singleton Aff. Ex. B: Muhammad Dep. at 142-43.) [ Page 10]

He also testified that the keeplock cell was "hot" and "filthy," that inmates can cut their face on the keeplock cell's rim, and that there are more fights. (Id. at 140-45.) He also stated that he was placed in the "long-term keeplock block, which is considered a SHU section of [that] jail," and so conditions were different — worse — than keeplock in other jails. (Id. at 144-45.)

Following defendant Pico's Tier III decision, Muhammad appealed to the Commissioner. (Selsky Aff. ¶ 12.) See 7 N.Y.C.R.R. § 254.8. Defendant Selsky, as Director of the Inmate Disciplinary Program, received the appeal on June 9, 1997. (Selsky Aff. ¶ 12.) Selsky reviewed the "Inmate Misbehavior Report, Superintendent Hearing Disposition Rendered form, Assistance Forms, Hearing Records Sheet, and other documentary evidence," and affirmed the Hearing Officer's guilty determination on July 30, 1997. (Id. ¶¶ 13-14; see also Dkt. No. 38: Singleton Aff. Ex. J: Review of Superintendent's Hearing.) Finding that "the nature of [Muhammad's] misconduct did not warrant the penalty imposed" (Id.), Selsky reduced the punishment to 365 days keeplock and an equivalent loss of privileges. (Selsky Aff. ¶ 14; Singleton Aff. Ex. J.) Muhammad submitted a letter request for reconsideration, which Selsky received on August 6, 1997. (Selsky Aff. ¶ 15.) Selsky further reduced Muhammad's sentence to 180 days keeplock — 138 days for time-served from May 9 to September 26, and forty-two days suspended. (Id. ¶ 17-18.)*fn13 Thus, Muhammad was in keeplock from May 9, 1997 to September 26, 1997. (See Selsky Aff. ¶ 19.) [ Page 11]

Muhammad's Complaint

Muhammad commenced this § 1983 action by filing a pro se complaint dated February 25, 2000, received by this Court's Pro Se Office on December 13, 2000, and filed as of February 11, 2002.*fn14 (Dkt. No. 2: Compl.) Muhammad obtained leave from the Court and filed an amended complaint on February 21, 2003 to add Norman Baltuch as a defendant after obtaining his name from discovery material. (Dkt. No. 23: Am. Compl.) Muhammad seeks a reversal of the Tier III disciplinary hearing, and expungement of the Tier III guilty determination from his prison record, as well as compensatory and punitive damages "in an amount fitting these gross-violations." (Am. Compl. ¶ 5 "Relief.")

In his complaint, Muhammad denies all involvement with the "Terror Campaign," and alleges that the process by which he was transferred out of Green Haven and found guilty of a rule 104.12 violation "shocks ones very sense of fair-ness" and was laden with Constitutional violations. (Am. Compl. Attach. at 6.) [ Page 12]

Free Exercise of Religion and Conspiracy Claims

Muhammad alleges that he was the victim of a conspiracy by defendants Mahmud, Connolly, and Dolan to prevent him from freely exercising his chosen religion, Islam. (Dkt. No. 23: Am. Compl. ¶ 4 "Statement of Claim.") Muhammad claims that "in the spring of 97 the Muslim community at Green Haven . . . was going-thru problems due to a state-agent `def. Mahmud' pushing sectarian-ism[,] calling for the majority Sunnis to suppress the minority Shi'as and drive them physically out of the masjid, "*fn15 infringing upon his right to practice the Shiite faith. (Am. Compl. ¶ 4 "Statement of Claim.") Muhammad, a purported Shiite elder in the DOCS Muslim community, states that he spoke out against Mahmud's "foul-plot," repeatedly criticizing Mahmud's oppression of the Shiites and insisting that the Muslim chaplains and DOCS start offering Shiite classes, library materials, and the opportunity to hear guest speakers. (Am. Compl. ¶ 4 "Statement of Claim"; Dkt. No. 38: Singleton Aff. Ex. B: Muhammad Dep. at 35-47, 58-60.) Muhammad further claims that because of his admonition of the Imam and his anti-Shiite sentiments, Mahmud lied to prison authorities to have Muhammad implicated in the cell shop terror campaign, placed in SHU away from the general population, and transferred from Green Haven to a prison in upstate New York. (Am. Compl. ¶ 4 "Statement of Claim.") Muhammad alleges that defendants Sgt. Dolan and Lt. [ Page 13]

Connolly conspired with defendant chaplain Mahmud to frame Muhammad through the use of confidential informants that Muhammad calls "snitches/liars." (Am. Compl. Attach. at 4.)*fn16

Mohammad concedes that he did not file any formal grievances regarding the free exercise claims; he stated that he only mentioned the problems to prison officials in passing, and that he wrote some complaint letters to the DOCS Central Office. (Dkt. No. 38: Singleton Aff. Ex. B: Muhammad Dep. at 66-67; see also Dkt. No. 47: Eagen Aff. ¶ 3-4 & Ex. A; Dkt. No. 46: Alexis Aff. ¶¶ 1-4.)

Due Process Claims

Muhammad also asserts that defendants Dolan, Connolly, Baltuch, Easter, Pico, and Selsky violated his procedural due process rights through their involvement with the May 9, 1997 misbehavior report and the Tier III disciplinary hearing at Downstate.*fn17 First, Muhammad alleges that the misbehavior report endorsed by Sgt. Dolan and Lt. Connolly, was "defective as a matter of law & fact because it[']s too vague." (Dkt. No. 23: Am. Compl. Attach. at 2.) Muhammad claims that the misbehavior report should have made more specific factual allegations regarding the alleged [ Page 14]

role of each of the accused in the "Terror Campaign" and the specific acts of which they were being accused, in order for each defendant to be on notice of the charges being brought against them. (Id.) Indeed, Muhammad claims that the misbehavior report that he received, and the misbehavior reports that others accused of being involved in the "Terror Campaign" received, were virtually carbon copies. (Dkt. No. 38: Singleton Aff. Ex. B: Muhammad Dep. at 95, 106, 110-11.)

Second, Muhammad claims that he was denied "basic meaningful assistance" from defendant Baltuch because Baltuch failed to fulfill his statutory obligations to assist him in preparing for the Tier III hearing. (Dkt. No. 23: Am. Compl. ¶ 4 & Attach. at 1-2; see Muhammad Dep. at 116-21.) According to Muhammad, Baltuch did not verify Muhammad's identity when he first met him, did not confirm that Muhammad understood and spoke English, and did not confirm that Muhammad understood the charges against him. (Id.) Muhammad also claims that Baltuch never properly addressed his requests for documents and failed to interview witnesses and report the results of those interviews to him. (Id.) see 7 N.Y.C.R.R. § 251-4.2 (quoted at page 7 fn.8 above). Finally, Muhammad asserts that Baltuch wrongfully allowed defendant Easter to decide that he could not have certain documents that he needed to mount a meaningful defense. (Am. Compl. Attach. at 1-2; Muhammad Dep. at 116, 118.) Baltuch allegedly violated Muhammad's rights when he let Easter "overstep[] her bounds" by denying Muhammad his "regulatory or statutory rights under DOCS Rules." (Muhammad Dep. at 115-16.) Defendant Easter thus allegedly "interfered with the assistant's job" (Id.), depriving Muhammad of due process protection.

Third, Muhammad claims that he did not receive due process during the hearing conducted by defendant Pico. He alleges that Pico, a "[DOCS] hired-gun," violated "so many [of his] basic rights (some blatantly others not so clearly)." (Am. Compl. Attach. at 1-2.) The complaint [ Page 15]

states that Pico "illegally" held simultaneous Tier III hearings for several inmates involved in the terror campaign, which Muhammad claims is not authorized. (Am. Compl. ¶ 4 "Statement of Claim"; Am. Compl. Attach. at 2; see Muhammad Dep. at 129, 139.) Muhammad asserts that this caused Pico to commit serious mistakes regarding his case — e.g., calling the wrong witnesses and placing evidence from another case in Muhammad's folder. (Am. Compl. Attach. at 2; Muhammad Dep. at 134-35.) Muhammad also claims that Pico did not allow him to fully question witnesses, in order to prevent him from exposing that state agents working for DOCS violated the rights of all those accused of organizing the "Terror Campaign." (Am. Compl. Attach. at 2; see Muhammad Dep. at 121-22, 130-32, 136.) Furthermore, the complaint maintains that a "gross vio[lation] took place" because the entire Tier III hearing was not on tape, and that Pico issued some off-the-record "thinly-veiled threats" to preclude Muhammad from questioning more witnesses if he continued to object to Pico's rulings. (Am. Compl. Attach. at 3.) Muhammad asserts that Pico relied too heavily on information provided by self-serving confidential informants and prevented Muhammad from obtaining evidence from these informants and from other sources. (Id. at 4-5.) The complaint also maintains that the hearing violated Muhammad's due process rights because it was not started and completed "in a timely-fashion as ordered by Chap[ter] V" and that Hearing Officer Pico obtained an extension of time to complete the hearing (Id. at 3) in an attempt to cover up the fact that Baltuch had provided Muhammad with inadequate assistance (Id. at 2-3). Muhammad concludes by asserting that the entire hearing was based upon "rumors, past-charges, and old reputations" and that Pico was biased, predetermined Muhammad's guilt, failed to consider evidence in Muhammad's favor, failed to marshal the evidence, and had "a plot to under-mine [Muhammad's] defense by doing a host of [ Page 16]

negative things," including sabotaging Muhammad's defense by refusing to hear the witnesses in Muhammad's preferred order. (Am. Compl. Attach. at 4, 8; Muhammad Dep. at 164-65, 168.)

Finally, Muhammad claims that he is suing Selsky both in his supervisory position and as an individual, because "he could have stopped this train a long time ago and he refused to." (Muhammad Dep. at 123.) Muhammad explained that he wrote three letters to Selsky to inform him of the "frame-up in Green Haven" and to request reconsideration of the Tier III hearing disposition, and that Selsky should have expunged plaintiff's record on the basis of the letters. ...


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