United States District Court, W.D. New York
January 22, 2004.
LUIS ROSALES, Plaintiff,
F.G. BENNETT, et al, Defendants
The opinion of the court was delivered by: DAVID LARIMER, Chief Judge, District
DECISION AND ORDER
Plaintiff, Luis Resales, appearing pro se, filed the complaint
in this action under 42 U.S.C. § 1983 on March 27, 2001. Plaintiff,
an inmate in the custody of the New York State Department of Correctional
Services ("DOCS"), alleges that his constitutional rights were violated
in connection with an administrative segregation hearing ("hearing") in
May 1998, and his subsequent 196-day confinement in the Special Housing
Unit ("SHU") at Elmira Correctional Facility ("Elmira").
After defendants moved for summary judgment, this Court, on September
2, 2003, issued a Decision and Order directing the parties to file
further submissions addressing the issue of whether plaintiff has
exhausted his administrative remedies as required by the Prison
Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a). The parties
having done so, the following constitutes the Court's ruling on
defendants' summary judgment motion.
I. Exhaustion of Remedies
The PRLA provides at 42 U.S.C. § 1997e(a) that "[n]o action shall
be brought with respect to prison conditions under section 1983 of this
title, or any other Federal law, by a prisoner confined in any jail,
prison, or other correctional facility until such administrative remedies
as are available are exhausted." This requirement applies "to all
prisoners seeking redress for prison circumstances or occurrences,"
regardless of whether the plaintiffs claim is based on an isolated
incident or on prison conditions in general. Porter v. Nussle,
534 U.S. 516, 520 (2002).
In New York State, administrative remedies for grievances consist of a
three-step review process. First, "an inmate must submit a complaint to
the Grievance Clerk within 14 calendar days of an alleged
occurrence. . . ." 7 N.Y.C.R.R. § 701.7(a)(1). The grievance is then
submitted to the inmate grievance resolution committee ("IGRC") for
investigation and review. The IGRC's decision can be appealed to the
superintendent of the facility, and the superintendent's decision can be
appealed to the Central Office Review Committee ("CORC"), which makes the
final administrative determination. See 7 N.Y.C.R.R. §
701.7. At each step, there are time limits within which the grievance or
appeal must be decided, and "matters not decided within the time limits
[prescribed by the regulations] may be appealed to the next step."
7 N.Y.C.R.R. § 701.8. Only upon exhaustion of these three levels of
review may a prisoner seek relief pursuant to 42 U.S.C. § 1983 in
federal court. Santos v. Hauck, 242 F. Supp.2d 257 (W.D.N.Y.
Where an inmate's federal claims arise directly out of a disciplinary
or administrative segregation hearing, on the other hand (e.g.,
a claim of denial of procedural due process), "he exhausts his
administrative remedies by presenting his objections in the
process, not by filing a separate grievance instead of or in
addition to his ordinary appeal." Flanagan v. Maly, 99 Civ.
12336, 2002 WL 122921 at *2 (S.D.N.Y. Jan. 29, 2002). At the same time,
however, a plaintiff cannot satisfy the PLRA's exhaustion requirement as
to grievable matters that do not directly relate to the conduct
of a hearing simply by alluding to them in his administrative appeal of
the hearing decision. For example, if at the hearing the inmate asserts,
or attempts to assert, allegations of misconduct by the correction
officers involved in the underlying events, the inmate cannot adequately
exhaust his remedies for PLRA purposes through his administrative appeal
of the hearing decision; he must separately grieve the alleged misconduct
of the officers. See Scott v. Gardner, 287 F. Supp.2d 477, 489
(S.D.N.Y. 2003) ("Although completion of the disciplinary appeal process
may satisfy the exhaustion requirement with respect to Scott's claims
that he was denied due process in the disciplinary proceedings,
allegations of staff misconduct related to the incidents giving rise to
the discipline must be grieved"); McCoy v. Goord, 255 F. Supp.2d 233,
246 (S.D.N.Y. 2003) ("Appeal of a disciplinary hearing decision
brought against the inmate does not accomplish exhaustion, even if the
federal complaint and the disciplinary action share the same operative
facts"); Labounty v. Johnson, 253 F. Supp.2d 496, 501 (W.D.N.Y.
2003) ("An appeal from a disciplinary hearing does not satisfy the
grievance exhaustion requirement for an Eighth Amendment claim, even if
the hearing is based on the same set of facts underlying the grievance").
In the case at bar, defendants apparently concede that plaintiff has
exhausted his remedies as to his claims relating to the conduct of the
hearing, and the evidence submitted by plaintiff in response to the
Court's September 2 Decision and Order also indicates that he did appeal
from that decision, and that the appeal was denied. See
Plaintiff's Ex. B (Attachment to Docket #34).
In his administrative appeal, plaintiff raised three claims: that the
hearing officer, defendant Crowley, violated plaintiff's constitutional
right to call witnesses on his behalf; that Crowley improperly refused to
allow plaintiff to present certain evidence; and that there was
insufficient evidence to support Crowley's findings. Id.
In his complaint in this case, plaintiff asserts three causes of
action: that defendants placed him in administrative segregation to
retaliate against plaintiff for having exercised his constitutional
rights; that defendants denied plaintiff's right to procedural due
process in connection with the hearing; and that defendant Bennett, the
Superintendent of the facility where plaintiff was housed at the time,
failed to protect plaintiff from retaliatory conduct. Complaint ¶¶
The second cause of action in plaintiff's complaint here largely tracks
the matters raised in his administrative appeal from the hearing
decision,*fn1 and arises directly out of the conduct of the hearing
itself. Accordingly, plaintiff has sufficiently exhausted his remedies as
to the second cause of action. See Farid v. Ellen, No. 01 CIV.
8292, 2003 WL 23018805, at *2-3 (S.D.N.Y. Dec. 23, 2003).
There is no evidence that plaintiff grieved the matters giving rise to
his first and third causes of action, however. Although plaintiff
attempts to show that during his period of administrative segregation,
defendants and other DOCS staff prevented him from fully or effectively
utilizing the grievance process, the evidence that he has submitted in
that regard relates to matters completely distinct and separate from the
claims raised in his first and third causes of action here. See
Ex. C. Plaintiff has not submitted evidence, nor does he even
allege, that he filed, attempted to file, or even prepared a grievance
concerning the retaliation and failure to protect that he asserts in the
case at bar.*fn2 As to his first and third causes of action, then,
plaintiff has failed to exhaust his claims.
The Second Circuit has yet to rule on whether the PLRA imposes a "total
exhaustion" requirement, although it has appointed counsel to address the
issue. See Ortiz v. McBride, 323 F.3d 191, 195 (2d Cir. 2003).
The district courts within this circuit are split on whether "mixed"
cases containing both exhausted and unexhausted claims should be
dismissed in their entirety, or whether only the unexhausted claims
should be dismissed, allowing the exhausted claims to go forward.
In the situation presented here, I find that the wiser course would be
to dismiss only plaintiff's first and third causes of action, which have
not been exhausted. Plaintiff's second cause of action, alleging due
process violations in connection with the hearing, is factually distinct
from his other two claims, which relate to retaliation, and the failure
to protect him from that retaliation, that allegedly occurred prior to,
and separate from, the hearing. There is little reason to dismiss
plaintiff's (exhausted) due process claim simply because he failed to
exhaust the two other discrete and indirectly related claims. See
Muhammad v. Pico, No. 02 CIV. 1052, 2003 WL 21792158, at *10
(S.D.N.Y. Aug. 5, 2003) (addressing merits of exhausted due process claim
while dismissing freedom-to-exercise and conspiracy claims; "it is
significant that the free exercise and the conspiracy claims are easily
separated from the due process claim since they involve discrete events
be analyzed independently"); see also Nelson v. Rodas, No.
01 CIV. 7887, 2002 WL 31075804 at *5-6 (S.D.N.Y. Sept. 17, 2002) (taking
I also note that defendants assert that plaintiff's second cause of
action attempts to assert two grounds for his procedural due process
claim that plaintiff did not raise in his administrative appeal: lack of
adequate employee assistance and bias on Crowley's part. I agree that the
ineffective assistance claim was not raised in plaintiff's administrative
appeal, and he is therefore barred from raising it in this action.
See Khalid v. Reda, No. 00 Civ. 7691, 2003 WL 42145, at *5
(S.D.N.Y. Jan. 23, 2003) (finding nonexhaustion "[b]ecause [plaintiff]
failed to raise the issue he raises here on his administrative appeal").
The factual basis for the claim of bias was presented in plaintiff's
appeal, however, see Plaintiff's Ex. A, Administrative Appeal at
5, 9 (alleging that "Crowley did not believe Augustine [the officer who
filed the report against plaintiff] was capable of fabricating the
report" and that plaintiff "was also denied his right to a fair and
impartial fact finder"). Accordingly, the Court can reach the merits of
plaintiff's bias claim.
II. Due Process Claim
A. General Principles
A prisoner placed in administrative confinement receives "fewer
procedural protections" than those in disciplinary confinement.
Matiyn v. Henderson, 841 F.2d 31, 34 (2d Cir.), cert.
denied, 487 U.S. 1220 (1988). He is, however, entitled to "some
notice of the charges against him and an opportunity to present his views
to the prison official charged with deciding whether to transfer him to
administrative segregation." Hewitt v. Helms, 459 U.S. 460, 476
(1983); see also Matiyn, 841
F.2d at 36. The prisoner must be afforded an opportunity to be
heard "at a meaningful time and in a meaningful manner," Lowrance v.
Achtyl, 20 F.3d 529, 536 (2d Cir. 1994) (quoting Mathews v.
Eldridge, 424 U.S. 319, 333 (1976)), so that he may "avoid an
improvident or wrongful administrative confinement." Lowrance,
20 F.3d at 536 (quoting Gittens v. LeFevre, 891 F.2d 38, 41 (2d
Cir. 1989)). "[I]f the restraint is for `administrative' purposes," then,
"the minimal procedures outlined in Hewitt are all that is
required." Benjamin v. Fraser, 264 F.3d 175, 190 (2d Cir. 2001).
B. Plaintiff's Due Process Claim
After reviewing the record, I find that, even viewing the evidence in
the light most favorable to plaintiff, the non-moving party, no issues of
material fact exist, and that defendants are entitled to judgment as a
matter of law on plaintiff's claim that he was denied procedural due
process. Plaintiff's second cause of action must therefore be dismissed.
Plaintiff first alleges that he was denied the right to call certain
witnesses at the hearing. Although inmates do have some right to call
witnesses, that right has its limits. "Prison officials must have the
necessary discretion to keep the hearing within reasonable limits and to
refuse to call witnesses that may create a risk of reprisal or undermine
authority, as well as to limit access to other inmates to collect
statements or to compile other documentary evidence." Ponte v.
Real, 471 U.S. 491, 496(1985).
The hearing transcript reflects that although two requested inmate
witnesses did not testify in person at the hearing, apparently because
they were in protective custody, they were asked certain questions that
plaintiff had prepared for them, their answers were audiotaped, and the
played at the hearing. Crowley Aff. (Docket #23), Ex. C.*fn3 In
addition, at plaintiff's request, defendant Sgt. Christofaro was called
as a witness, and plaintiff was allowed to have certain questions asked
of Christofaro. Id. Other requested witnesses were denied on the
ground that their anticipated testimony would have been irrelevant.
Id. I find that in this respect, Crowley did not abuse his
discretion, and that plaintiff was afforded all the process that was due
him under the standards established by the Supreme Court and the Second
Circuit. Real, 471 U.S. at 496; Russell v. Selsky,
35 F.3d 55, 58-59 (2d Cir. 1994); Scott v. Kelly, 962 F.2d 145, 147
(2d Cir. 1992) (reviewing court must defer to hearing officer absent
abuse of discretion); see also Kingsley v. Bureau of Prisons,
937 F.2d 26, 30 (2d Cir. 1991) ("The Supreme Court also has suggested
that a prisoner's request for a witness can be denied on the basis of
irrelevance or lack of necessity") (citing Real, 471 U.S. at
Plaintiff also asserts that he was denied the right to present certain
evidence. This claim is apparently based on plaintiff's allegation that
he was not provided with certain documents that he had requested in
advance of the hearing.
As with the right to call witnesses, "the prisoner's right to . . .
present evidence . . . could be denied if granting the request would
be `unduly hazardous to institutional safety or correctional goals.'"
Real, 471 U.S. at 495 (quoting Wolff v. McDonnell,
418 U.S. 539, 566 (1974)). The record here shows that plaintiff submitted a
five-page request for documents and witnesses, and that many of those
requests were granted. See Crowley Aff. Ex. A. In addition, with
respect to the requests that were denied, Crowley did not simply deny
them out of hand, without explanation, but stated his
reasons for doing so, including "confidential," "none [existed],"
and "not applicable." Again, I find no abuse of discretion or denial of
due process in this regard. Cf. Real, 471 U.S. at 497 ("prison
officials may be required to explain, in a limited manner, the reason why
witnesses were not allowed to testify, . . . by making the explanation
a part of the `administrative record' in the disciplinary proceeding").
Plaintiff's final basis for his due process claim is that Crowley was
biased against him and prejudged his guilt, and that Crowley knowingly
relied upon false information in reaching his conclusions.*fn4 These
allegations merit little discussion.
Plaintiff alleges that Crowley stated, in effect, that he could not
believe that Augustine was capable of fabricating charges against
plaintiff. The actual colloquy, however, was that plaintiff
asked Crowley if he believed that Augustine could do so, and
Crowley responded, "I'm not going, I'm not ever going to answer that,"
and "I would say that would not be a professional thing to do." Crowley
Aff. Ex. C. That does not evince any bias or prejudgment on Crowley's
part. In addition, plaintiff's assertions that Crowley relied on evidence
that he knew to be untrue are wholly conclusory and without support in
Finally, I note that plaintiff has requested discovery of a host of
materials. Plaintiff's request is denied. Most of the items he lists are
not identified with any particularity, e.g., "evidence that
defendants knew all along plaintiff was not the perpetrator,"
Plaintiff's Memorandum of Law,*fn5 and he has failed to show that such
evidence even exists, e.g., "evidence that Augustine could have
easily manipulated the C[onfidential] I[nformant]," or that there is any
relevant evidence not already within his possession. See Samuels v.
LeFevre, 885 F. Supp. 32, 38 (N.D.N.Y.) ("Because we grant
defendants' motion for summary judgment, additional discovery in this
action is unnecessary. Therefore, Samuels' motion to compel [defendant]
to answer interrogatories is DENIED"), aff'd, 89 F.3d 826 (2d
Cir. 1995) (table).
Defendants' motion for summary judgment (Docket #20) is granted, and
the complaint is dismissed.
IT IS SO ORDERED.