United States District Court, S.D. New York
August 26, 2005.
STACY KNIGHT, Plaintiff,
JOHN P. KEANE, SUPERINTENDENT, SING SING CORRECTIONAL FACILITY, ET AL., Defendants.
The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge
REPORT and RECOMMENDATION
TO THE HONORABLE RICHARD M. BERMAN, UNITED STATES DISTRICT JUDGE
Plaintiff Stacy Knight ("Knight") brought this action pro
se, pursuant to, inter alia, 42 U.S.C. § 1983 ("§ 1983"),
alleging that rights secured to him by the First, Eighth and
Fourteenth Amendments to the Constitution were violated by
defendants John P. Keane ("Keane"), Superintendent, Sing Sing
Correctional Facility, Harry Kerrigan ("Kerrigan"), Sergeant,
Sing Sing Correctional Facility, Thomas Dixon ("Dixon"),
Lieutenant, Attica Correctional Facility, and Donald Selsky
("Selksy"), Director of Special Housing Unit and Inmate
Disciplinary Program, Department of Corrections ("DOCS")
(collectively "defendants").*fn1 Knight alleges that his Fourteenth Amendment right to procedural due process was
violated when the defendants caused him to be confined in
keeplock*fn2 for 365 days following a disciplinary hearing
in which plaintiff was found guilty of violating a prison rule.
In addition, plaintiff contends that his First Amendment right to
receive and send mail was violated when the defendants seized his
personal correspondence in contravention of prison rules and
Before the Court is the defendants' motion for summary
judgment, made pursuant to Fed.R.Civ.P. 56. They contend that
plaintiff's complaint should be dismissed because: (1) the
examination of plaintiff's mail was reasonably related to
substantial governmental interests and, therefore, was not a
First Amendment violation; (2) plaintiff was not deprived of his
right to due process under the Fourteenth Amendment; and (3) they
are shielded from liability to the plaintiff. by the doctrine of
qualified immunity. The defendants' motion is addressed below.
On October 8, 1996, while plaintiff was housed at the Sing Sing
Correctional Facility ("Sing Sing"), an incident occurred during
which three inmates were stabbed ("the stabbing incident"). As a
result of these assaults, which were related to gang activity,
and after contraband was found, corrections personnel conducted
an investigation. In furtherance of the investigation, the A
block area of the facility was placed under a lockdown during
which inmates were restricted to their cells. At the time, plaintiff was housed in
the P unit of Sing Sing's A block. In his deposition, dated
August 25, 2004, plaintiff stated that the lockdown took place
between October 8, 1996, and October 12, 1996. The defendants'
Local Rule 56.1 statement also places the lockdown during this
four-day period. However, both the complaint and a notice issued
by Director Selsky, which was read into the record during a
disciplinary hearing held in connection with plaintiff's alleged
participation in the stabbing incident, state that the lockdown
commenced on October 13, 1996, and continued at least through
October 15, 1996.
On October 12, 1996, a friend of the plaintiff named "Uni" was
assaulted in or near the facility's dining hall. After that
assault, corrections personnel approached the plaintiff and told
him that they had received information from informants that he
was a leader of the Bloods gang, that he could be attacked and
that he could be in possession of a weapon. Plaintiff was then
escorted from his cell and frisked, and a weapon was found. As a
result of this infraction of prison regulations, plaintiff was
placed in the facility's Special Housing Unit ("SHU").
While he was in SHU, plaintiff wrote a letter to his mother. In
the letter, dated October 13, 1996, plaintiff stated that he was
in SHU on a weapons charge and that he had the weapon because "a
friend of mine got stabbed in front of me by some Puerto Ricans
(Latin Kings), and I cut three of them." In his letter, plaintiff
also explained the circumstances that led to his placement in SHU
and stated that there was "a civil war going on between the
`Bloods' and Latin Kings right now." Plaintiff stated
subsequently that the contents of the letter were true, except
for the part in which he wrote that he had "cut" three inmates.
As part of the investigation of the stabbing incident, a mail
watch was conducted and plaintiff's letter to his mother was
seized by prison officials. In his affirmation, dated December 15, 2004, Sgt. Kerrigan,*fn3 who was head of the Crisis
Intervention Unit at Sing Sing at the time, stated that, although
lockdowns occur "only very rarely," it is "standard procedure" to
conduct a mail watch during a lockdown because "inmates will use
the mail to dispose of illegal contraband." Sgt. Kerrigan also
affirmed that authorization had been given to conduct the mail
watch and that it was instituted "in an effort to determine who
was the inmate or inmates behind the assaults and to stop future
assaults." On or about October 15, 1996, plaintiff was
transferred to the Attica Correctional Facility ("Attica").
Thereafter, on October 19, 1996, Sgt. Kerrigan filed a
misbehavior report charging the plaintiff with having violated a
prison disciplinary rule by assaulting other inmates. Attached to
the report was plaintiff's letter to his mother. The letter was
used as evidence against plaintiff at a Tier III disciplinary
hearing conducted by defendant Lt. Dixon at Attica. The
disciplinary hearing began on October 30, 1996, and concluded on
November 5, 1996. Plaintiff pleaded not guilty to the charges
lodged against him.
During the hearing, plaintiff claimed that he was locked in his
cell at the time of the stabbing incident and, thus, could not
have been the assailant. Plaintiff also claimed that one of the
individuals who was attacked, Raul Torres ("Torres"), was his
friend. Torres was called by plaintiff as a witness during the
hearing. Torres, appearing by telephone, confirmed that he knew
the plaintiff, that he had gotten slashed in the head during the
stabbing incident and that he was unable to identify the
perpetrators. Additionally, Torres stated that after he was
assaulted, plaintiff took hold of him, asked him if he was
alright and then led him to a corrections officer so that he could be escorted to the facility's infirmary.
Corrections Officer J. Perez also appeared, by telephone, as a
witness at the hearing. Officer Perez stated that he was the
officer in charge in the A block at Sing Sing when the stabbing
incident occurred and that he had witnessed that event. Officer
Perez also stated that although he was unable to identify the
perpetrator or the victims, he was able to provide a description
of an individual who may have been involved. Officer Perez stated
that he did not recall seeing anyone answering to plaintiff's
description during the stabbing incident and had not heard
plaintiff's name called out at the time.
The final witness to testify at the hearing was Sgt. Kerrigan.
Sgt. Kerrigan, who also testified by telephone, stated that
plaintiff's letter had been found as a result of the
investigation and lockdown following the stabbing incident. In
response to a question from the plaintiff, Sgt. Kerrigan stated
that he believed the mail watch had been authorized by a
superintendent at Sing Sing. When Knight attempted to put
additional questions to Sgt. Kerrigan, the following exchange
Knight: [U]nder what stipulations . . . did the
Superintendent . . . say that my mail should be
Lt. Dixon: He's already responded to [that], who[se]
mail was being watched, next question?
Knight: He said
Lt. Dixon: He's already responded to who[se] mail was
being watched, next question.
Knight: This is my question, for what reason?
Lt. Dixon: He has already given that response, next
Knight: Yeah but he said a facility lock down, he
didn't say specifically that I was under
Lt. Dixon: But he has already responded to that
question, next question.
In later testimony, Sgt. Kerrigan stated that if Knight had
become a suspect during the investigation following the stabbing
incident, his name would have appeared on the Unusual Incident
Report that was prepared at the time.
During the hearing and in his complaint, plaintiff objected to
the seizure and use of the letter he had written to his mother.
Plaintiff claimed that the interception of his correspondence
constituted "unauthorized censorship" and violated his First
Amendment rights. Plaintiff claimed further that the letter had
been opened and read in violation of prison regulations, which
required corrections personnel to obtain written authorization
from the facility superintendent before inspecting an inmate's
outgoing correspondence.*fn4 According to plaintiff,
although Sgt. Kerrigan testified at the disciplinary hearing that
he believed the seizure of plaintiff's mail had been authorized
by the facility superintendent, there was no record of such
authorization and, moreover, Sgt. Kerrigan did not have
sufficient independent information concerning plaintiff's alleged
involvement in the stabbing incident to justify seizure of
plaintiff's letter. Plaintiff maintained that the sole basis for prison officials'
identification of him as a suspect in the stabbing incident and,
thus, for the filing of the misbehavior report against him, was
the information contained in plaintiff's letter. Plaintiff
asserted that, if he had been identified as a suspect prior to
the inspection of his outgoing mail, his name would have appeared
in the Unusual Incident Report which was filed by Sgt. Kerrigan
in connection with the stabbing incident. Plaintiff contends that
since his name did not appear in that report, "as the record
stands there [was] no valid reason to suspect plaintiff of [the]
Following the disciplinary hearing, plaintiff was found guilty
of assaulting other inmates; he received a penalty of 365 days in
keeplock confinement, loss of telephone privileges and loss of
good time credits. This determination was affirmed on appeal by
defendant Selsky, Director of the SHU.
In November 1998, 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, Fourth Department, which annulled the determination of
the disciplinary hearing officer and ruled that all references to
the disciplinary charge brought against plaintiff be removed from
his DOCS file. See Matter of Knight v. Goord, 255 A.D.2d 930,
681 N.Y.S. 2d 719 (App.Div. 4th Dep't 1998). In reaching its
finding, the court concluded that the evidence used at the
disciplinary hearing, that is, plaintiff's October 13, 1996,
letter to his mother, had been seized in contravention of DOCS'
rules and regulations. In his deposition, plaintiff testified
that by the time the Appellate Division issued its decision in
this case, he had already served a full year in keeplock
confinement. Plaintiff seeks compensatory and punitive damages.
In February 2000, the defendants moved to dismiss the
complaint; that motion was granted in part and denied in part.
See Knight, 247 F. Supp. 2d at 382. Thereafter the parties
engaged in discovery. On December 16, 2004, the defendants filed
the instant motion for summary judgment pursuant to Fed.R. Civ.
P. 56. In support of their motion, defendants submitted, in
addition to the affirmation of Sgt. Kerrigan and deposition of
the plaintiff noted above, a transcript of plaintiff's
disciplinary hearing, as well as other relevant documents.
Plaintiff submitted an opposition to the defendants' motion
entitled "Memorandum of Law in Support of Plaintiff's Motion to
Grant Summary Judgment and Dismiss Defendants' Motion of
Qualified Immunity to Proceed to Trial," dated February 11, 2005,
a declaration, a notice of motion and a statement pursuant to
Local Rule 56.1. Defendants filed a reply memorandum on March 17,
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."
Fed.R.Civ.P. 56(c); see D'Amico v. City of New York,
132 F.3d 145, 149 (2d Cir. 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 Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356
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
forth 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 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." Id., at 256, 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).
Where, as here, a litigant appears before the court pro se,
that litigant's submissions should be read liberally and
interpreted so as "to raise the strongest arguments that they
suggest." McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir.
1999). However, this does not mean that the pro se litigant
is released from the typical requirements of summary judgment. A
"bald assertion" made by the pro se litigant that is not
supported by evidence will not be sufficient to overcome a motion
for summary judgment. See Lee v. Coughlin, 902 F. Supp. 424,
429 (S.D.N.Y. 1995). Section 1983
"To state a claim under § 1983, a plaintiff must allege that
(1) the challenged conduct was attributable at least in part to a
person who was acting under color of state law and (2) the
conduct deprived the plaintiff of a right guaranteed under the
Constitution of the United States." Snider v. Dylag,
188 F.3d 51, 53 (2d Cir. 1999) (citing Dwares v. City of New York,
985 F.2d 94, 98 [2d Cir. 1993]). "Allegations which are nothing more
than broad, simple, and conclusory statements are insufficient to
state a claim under § 1983." Alfaro Motors, Inc. v. Ward,
814 F.2d 883, 887 (2d Cir. 1987).
In this Circuit, personal involvement of defendants in alleged
constitutional deprivations is a prerequisite to an award of
damages under § 1983. McKinnon v. Patterson, 568 F.2d 930, 934
(2d Cir. 1977) (citing Mukmuk v. Comm'r of Dep't of Correction
Servs., 529 F.2d 272, 275 [2d Cir. 1976]). A § 1983 complaint
must contain allegations that a defendant is "directly and
personally responsible for the purported unlawful conduct."
Alfaro, 814 F.2d at 886 (citing Black v. U.S., 534 F.2d 524,
527-528 [2d Cir. 1976]); see also Lee v. State of New York
Dep't of Correctional Servs., No. 97 Civ. 7112, 1999 WL 673339,
at *15 (S.D.N.Y. Aug. 30, 1999).
In this case, the court found previously that plaintiff alleged
facts indicating that defendants Sgt. Kerrigan, Lt. Dixon and
Director Selsky were personally involved in the purported
constitutional violations and, consequently, that the record
evidence was sufficient to permit a § 1983 action to go forward
against them.*fn5 See Knight,
247 F. Supp. 2d at 382-383. First Amendment Claim
"[P]rison restrictions that implicate prisoners' constitutional
rights may be upheld if they are `reasonably related to
legitimate penological interests.'" Duamutef v. Hollins,
297 F.3d 108, 112 (2d Cir. 2002) (quoting Turner v. Safley,
482 U.S. 78, 89, 107 S. Ct. 2254, 2261 ). While prison inmates
have a First Amendment right in the free flow of their mail, both
incoming and outgoing, see Heimerle v. Attorney General,
753 F.2d 10 (2d Cir. 1985), the interception of a prisoner's
correspondence does not violate that individual's First Amendment
rights "if prison officials had `good' or `reasonable' cause to
inspect the mail." United States v. Felipe, 148 F.3d 101, 108
(2d Cir. 1998) (citing United States v. Workman, 80 F.3d 688,
699 [2d Cir. 1996]).
"[T]he implications of outgoing correspondence for prison
security are of a categorically lesser magnitude than the
implications of incoming materials." Thornburgh v. Abbott,
490 U.S. 401, 413, 109 S. Ct. 1874, 1882 (1989). "Therefore, the
penological interests for interference with outgoing mail must be
more than just the general security interest which justifies most
interference with incoming mail." Cancel v. Goord, No. 00 Civ.
2042, 2001 WL 303713, at *5 (S.D.N.Y. Mar. 29, 2001).
"[T]he investigation and prevention of illegal activity among
inmates is a legitimate penological interest, which has a logical
connection to the decision to impose a mail watch on a prisoner."
Felipe, 148 F.3d at 108; see also Thornburgh,
490 U.S. at 412, 109 S. Ct. at 1881 (finding that dangerous outgoing
correspondence, which would support a finding of good cause, may
include "escape plans, plans relating to ongoing criminal
activity, and threats of blackmail or extortion."). Moreover, the
"policy of deference [applicable in cases where federal courts
undertake a review of prison policy and administration] is
heightened with respect to the specific issue of `maintaining prison security and protecting against
increased inmate violence.'" Duamutef, 297 F.3d at 112 (quoting
Giano v. Senkowski, 54 F.3d 1050, 1053 [2d Cir. 1995]).
Based on a review of the evidence submitted by the parties
prior to and during discovery in this case, the Court finds that
the confiscation of plaintiff's mail was within constitutional
bounds. Under the circumstances, defendants had good cause, in
the interest of prison security, to open and inspect plaintiff's
October 13, 1996 letter to his mother.
As noted above, plaintiff's letter was opened and inspected in
the course of a mail watch that was instituted following the
stabbing incident.*fn6 Plaintiff is correct in stating that,
prior to the seizure of his letter, corrections personnel
apparently had no particular reason to suspect him of
participation in the stabbing incident. Even if plaintiff was not
locked in his cell when the stabbing incident occurred, as he has
claimed, his name did not appear in the Unusual Incident Report
that was prepared by Sgt. Kerrigan at that time. However, it does
not follow that corrections personnel did not have good cause to
inspect the plaintiff's mail. The record in this case indicates
that, not only plaintiff, but all of the inmates housed in the
area of Sing Sing where the stabbing incident occurred were
subject to a mail watch during the investigation conducted
following the assaults. Under the circumstances, the
implementation of a mail watch was not improper: prison officials
were concerned to discover the perpetrators of the assaults and
prevent future assaults in the context of violent, gang-related
activity necessitating an area-wide lockdown. Further, given the need to maintain prison security,
the penological interest in interference with the inmates'
outgoing mail was more than a general security interest.
Moreover, after plaintiff was found with a weapon, on October
12, 1996, and in light of information provided by informants,
that he was a leader of one of the gangs allegedly involved in
the stabbing incident, prison officials could reasonably have
suspected plaintiff of participation in that incident and, as a
result, have focused their investigative efforts on him.
Therefore, the inspection of plaintiff's mail was based on a
reasonable suspicion of his continuing criminal activity and was
reasonably related to legitimate penological interests.
Accordingly, the Court finds that the inspection of plaintiff's
mail did not violate his First Amendment rights as a matter of
Due Process Claim
A plaintiff asserting a due process claim "must establish (1)
that he possessed a liberty interest and (2) that the
defendant(s) deprived him of that interest as a result of
insufficient process." Giano v. Selsky, 238 F.3d 223, 225 (2d
Cir. 2001). A prisoner's liberty interest is implicated by prison
discipline, such as segregated confinement, only if the
punishment "imposes atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life."
Sandin v. Conner, 515 U.S. 472, 484, 115 S. Ct. 2293, 2300
(1995). In determining whether a disciplinary penalty involving
segregated confinement rises to the level of an "atypical and
significant hardship," the Second Circuit has instructed district
courts to consider: (1) the extent to which the conditions of the
disciplinary segregation differ from routine prison conditions;
and (2) the duration of the disciplinary segregation. See Sims
v. Artuz, 230 F.3d 14, 22 (2d Cir. 2000).
The Second Circuit has not established a "bright-line rule"
governing the duration of segregated confinement that rises to
the level of a due process violation under Sandin. However,
segregated confinement penalties of 125 to 288 days are
considered "relatively long." See Sales v. Barizone, No. 03
Civ. 6691, 2004 WL 2781752, at *6 (S.D.N.Y. Dec. 2, 2004)
(quoting Sims, 230 F.3d at 23) (finding one year of SHU
confinement to be "atypical and significant hardship").
Furthermore, the Second Circuit has held that "confinement in
normal SHU conditions for 305 days is in our judgment a
sufficient departure from the ordinary incidents of prison life
to require procedural due process protections under Sandin."
Colon v. Howard, 215 F.3d 227, 231 (2d Cir. 2000).
SHU confinement typically involves an extremely restrictive
regimen. Inmates are required to remain in their cells 23 hours
per day, are permitted three showers and one exercise period per
week, and are given less than the normal daily food allowance. In
his deposition, Knight testified that, in his case, keeplock
confinement involved the same restrictions as those imposed in
SHU, except that, in keeplock, the inmates were entitled to keep
their personal property.
Based on the case history in this circuit, the Court finds that
Knight's confinement in keeplock for 365 days qualifies as an
"atypical and significant hardship," and, thus, implicates a liberty interest.
The Second Circuit has explained that the due process
protections afforded a prison inmate subjected to prison
discipline include "advance written notice of the charges against
him; a hearing affording him a reasonable opportunity to call
witnesses and present documentary evidence; a fair and impartial
hearing officer; and a written statement of the disposition,
including the evidence relied upon and the reasons for the
disciplinary actions taken." Sira v. Morton, 380 F.3d 57, 69
(2d Cir. 2004). Furthermore,
the Supreme Court has clarified that judicial review
of the written findings required by due process is
limited to determining whether the disposition is
supported by "some evidence." This standard is
extremely tolerant and is satisfied if there is any
evidence in the record that supports the disciplinary
ruling. Nevertheless, as this court recently
explained, the "some evidence" standard requires some
Id. (citations omitted).
Due process requires that an accused inmate receive at least
twenty-four hours written notice of the disciplinary charges
against him prior to conducting a hearing. See Samuels v.
Selsky, No. 01 Civ. 8235, 2002 WL 31040370, at *11 (S.D.N.Y.
Sept. 12, 2002). In this case, plaintiff was served with a copy
of the misbehavior report filed by Sgt. Kerrigan on October 23,
1996. The hearing commenced on October 30, 1996. Therefore,
plaintiff was provided with sufficient notice of the charges
brought against him. Plaintiff also was afforded a reasonable
opportunity to call witnesses; as plaintiff acknowledged in his
complaint, and as the record shows, the witnesses requested by
plaintiff inmate Torres, Officer Perez and Sgt. Kerrigan did
in fact testify at the hearing.
Plaintiff appears to claim that the officer who presided at his
hearing, Lt. Dixon, failed to conduct the hearing in an impartial
manner. According to plaintiff, when he "attempted to ask what specific facts formulated the basis of the action [of
seizing plaintiff's mail] . . . Lt. Dixon stopped plaintiff from
ascertaining more information concerning the illegally seized
As noted above, during the testimony of Sgt. Kerrigan, Lt.
Dixon prevented plaintiff from asking questions about the basis
for the seizure of plaintiff's mail. The Court finds, however,
that Lt. Dixon's conduct at this stage of the hearing did not
deprive the plaintiff of due process. Sgt. Kerrigan had made
clear that the mail watch applied to all of the inmates in the A
block at Sing Sing; from this it could be inferred that the mail
watch was not directed at plaintiff exclusively. Under the
circumstances, therefore, Lt. Dixon's determination to forestall
continued questioning from the plaintiff on this subject was not
Furthermore, plaintiff's disciplinary ruling appears to have
been based on sufficient "reliable evidence" to satisfy due
process. First, the misbehavior report filed by Sgt. Kerrigan
provided a description of the stabbing incident, identified the
date and time of the incident and stated the basis of the charge
lodged against the plaintiff, namely, his admission in the letter
seized during the mail watch that he had "cut" three other
inmates. Consequently, the misbehavior report provided meaningful
notice of the misconduct at issue. Cf. Sira,
380 F.3d at 70-72 (finding a due process violation where misbehavior report
charging inmate with infractions of prison rules was
impermissibly conclusory). Additionally, Sgt. Kerrigan, who
prepared and signed the misbehavior report, appeared at the
hearing and was interviewed by the hearing officer. Cf. Luna
v. Pico, 356 F.3d 481, 489 (2d Cir. 2004) (finding that "some
evidence" standard was not met where, inter alia, author of
misbehavior report was not called to testify). During the
interview, Sgt. Kerrigan affirmed that the information contained
in the report had been obtained during the investigation
conducted after the stabbing incident. Further, although the misbehavior report failed to identify the incident site, Sgt.
Kerrigan testified that the incident had occurred in the P unit
of the A block at Sing Sing, where plaintiff was housed.*fn8
Second, the testimony of inmate Torres, while confirming that
he and plaintiff were known to each other, undermined plaintiff's
contention that he could not have been a perpetrator of the
assaults. Plaintiff had claimed that he was locked in his cell at
the time of the stabbing incident; however, Torres recalled being
aided by the plaintiff immediately after he was assaulted.
Finally, plaintiff's letter to his mother, written five days
after the stabbing incident and containing plaintiff's admission
that he had "cut" three other inmates, provided substantial
evidence of plaintiff's guilt, notwithstanding plaintiff's
contention that he had fabricated that part of the letter. As
discussed earlier, because the seizure of the letter was not a
violation of plaintiff's First Amendment rights, the introduction
of the letter into evidence during the hearing was not improper.
Furthermore, plaintiff acknowledged during his hearing testimony
that he had been found in possession of a weapon several days
after the stabbing incident, a fact which would tend to support
the defendants' conclusion that plaintiff had participated in
that event. Thus, the Court concludes that the information
presented during plaintiff's disciplinary hearing constituted
"reliable evidence" and was sufficient to support the finding of
guilt. Under the circumstances, therefore, the Court finds that while
the duration and conditions of plaintiff's confinement
constituted an atypical and significant hardship, plaintiff has
failed to present a due process violation. Accordingly,
plaintiff's due process claim should be dismissed.
The doctrine of qualified immunity shields "government
officials performing discretionary functions . . . from liability
for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a
reasonable person would have known, Harlow v. Fitzgerald,
457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982), or insofar as it was
objectively reasonable for them to believe that their acts did
not violate those rights. See Anderson v. Creighton,
483 U.S. 635, 641, 107 S. Ct. 3034, 3039-3040 (1987); Lennon v. Miller,
66 F.3d 416, 425 (2d Cir. 1995). The doctrine of qualified
immunity would protect a government official from personal
liability in a § 1983 claim.
When evaluating a summary judgment motion based on a claim for
qualified immunity in a § 1983 action, a court must first
determine whether the facts, viewed in the light most favorable
to the plaintiff, establish a constitutional violation. See
Sira, 380 F.3d at 68-69 (citing Saucier v. Katz,
533 U.S. 194, 201, 121 S. Ct. 2151, 2156 ). If not, "the plaintiff
may not recover because he has suffered no wrong cognizable under
§ 1983." Id. at 69. If the facts do establish the violation of
a constitutional right, however, the court must determine whether
the right was clearly established at the time of the alleged
violation. See, e.g., Duamutef, 297 F.3d at 111.
In this case, because there was no violation of a clearly
established constitutional right, the Court finds that the
defendants are entitled to qualified immunity. Therefore, the
plaintiff's § 1983 claim is barred. IV. RECOMMENDATION
For the reasons set forth above, I recommend that the
defendants' motion for summary judgment be granted with respect
to the plaintiff's First and Fourteenth Amendment claims against
defendants Sgt. Kerrigan, Lt. Dixon and Director Selsky. In
addition, I recommend that the defendants' request that they be
shielded from liability to the plaintiff by the doctrine of
qualified immunity also be granted.
V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
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 Richard M.
Berman, 40 Foley Square, Room 201, 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 Berman. 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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