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United States District Court, S.D. New York

September 12, 2005.


The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge




  Plaintiff Prince Pilgrim ("Pilgrim") brought this action pro se, pursuant to 42 U.S.C. § 1983 ("§ 1983"), alleging that his due process rights were violated by defendants Corrections Officer David Luther ("Luther"), Corrections Sergeant Edward J. Vaughn ("Vaughn"), and First Deputy Superintendent Joseph T. Smith ("Smith"), all of whom were employed at the New York State Department of Correctional Services' ("DOCS") Sing Sing Correctional Facility ("Sing Sing") at all times relevant to the instant action. Pilgrim alleges that, among other things, the defendants' misconduct resulted in disciplinary penalties that were excessively harsh and atypical of the deprivation endured by prisoners as an ordinary incident of prison life. The claims against Luther were dismissed previously by your Honor.

  Before the Court is a motion by Vaughn and Smith (collectively, "defendants") for summary judgment, made pursuant to Fed.R.Civ.P. 56. It is addressed below.


  On September 14, 1999, while confined at the Sing Sing, Pilgrim was placed in administrative segregation in an isolated section of the facility's special housing unit ("SHU"). That day, he received an Inmate Misbehavior Report ("IMR") that was completed and signed by Luther. The IMR notified Pilgrim that he had been charged with the following violations of prison rules: actions detrimental to the order of the facility ("demonstration charge"), conduct involving the threat of violence, and conspiracy in a takeover (collectively, "administrative charges"). See 7 N.Y.C.R.R. § 270.2(B)(5)(i)-(iii). The IMR stated further that during a search of Pilgrim's cell, prison employees discovered and seized three typewritten documents urging such actions.

  The seized documents, entitled "Wake Up," appear to ask prisoners to consider questions such as: "Why should we program or work?"; "What do we get in return?"; "Why should we be the raw materials in the DOCS prison industrial corporation which only serves the interests of politicians?" The defendants assert, based on the testimony of a confidential informant, that Pilgrim distributed the documents to fellow inmates in an effort to foment a collective protest or work stoppage at the beginning of the year 2000.

  On September 16, 1999, defendant Smith encountered Pilgrim in the SHU. Smith and Pilgrim had a conversation regarding a package that Pilgrim had not received. Pilgrim alleges that Smith also asked Pilgrim why he was isolated in the SHU, and that, in response, Pilgrim showed him the IMR. According to Pilgrim, Smith promised to investigate the matter and had Pilgrim moved to a less isolated section of the SHU. Smith denies that he made such a promise or conducted any investigation of the administrative charges.

  Shortly after receiving the IMR, Pilgrim requested that an "employee assistant" be provided to help him prepare a defense, in anticipation of an upcoming disciplinary hearing. Vaughn was assigned to assist Pilgrim in preparing for the upcoming hearing. He met with Pilgrim on September 16, 1999. According to Pilgrim's deposition testimony, Pilgrim asked Vaughn to obtain certain documents for him: (a) an unusual incident report; (b) an inmate mass demonstration report; (c) a contraband receipt; and (d) copies of the seized documents and all other documents pertinent to the search of his cell. See Declaration of Benjamin Lee ("Lee Declaration"), Exh. A, at 43. According to an "Assistant Form" completed by Vaughn, Pilgrim also asked Vaughn to interview Luther, another corrections officer named Theodore ("Theodore"), and an inmate, Ernest Henry ("Henry"). Id., Exh. D. Pilgrim alleges that he intended to call Luther and Theodore as witnesses at the hearing that was to be convened to adjudicate the administrative charges. According to Pilgrim's deposition testimony, he intended to call Henry as a character witness.

  On September 18, 1999, Vaughn and Pilgrim met again. According to Pilgrim, Vaughn told him that no documents would be provided until the disciplinary hearing was convened. Id., Exh. A, at 44. According to Pilgrim, Vaughn also told him that decisions regarding which witnesses might be permitted to testify would not be made until the hearing and would be made by the officer presiding at the hearing. Pilgrim contends, therefore, that Vaughn provided no assistance to him in interviewing witnesses or marshaling facts and evidence prior to the hearing. On September 20, 1999, a Tier III disciplinary hearing was held to adjudicate the administrative charges against Pilgrim.*fn1 Defendant Smith presided over the hearing. Pilgrim entered a plea of not guilty to each of the administrative charges.

  During the hearing, a partial transcript of which has been submitted by the defendants in support of the instant application, Smith stated that the unusual incident report requested by Pilgrim did not exist. Such reports, Smith explained, are made only in the event of an injury to an inmate or employee, or the seizure of drugs or weapons. Smith then stated that under Sing Sing's procedures, the IMR, a copy of which was given to Pilgrim, served as a contraband receipt. Also, Smith told Pilgrim that he could not receive a copy of the seized document itself, as it was evidence in an ongoing investigation. Smith did, however, read the document into the record at the hearing. Pilgrim acknowledged during the hearing that he was the author of the seized document.

  At the hearing, Smith stated that Luther would testify and that the only inmate whose testimony was pertinent to the case was the confidential informant. Luther later provided confidential testimony, in which he discussed the information provided by the informant. Luther's testimony was not released publicly because, according to Smith, it would place inmates at risk and undermine facility order. The confidential informant did not testify at the hearing.

  Pilgrim alleges that on the following day, September 21, 1999, he was approached by two sergeants, Gardner and McNamara. Pilgrim contends that Gardner and McNamara offered him a deal: if Pilgrim cooperated with prison officials, by giving them information on other inmates who might be conspiring to organize work stoppages and other collective actions, the sergeants would assist him in having the disciplinary charges dismissed. Pilgrim maintains that he rejected the sergeants' proposal.

  On September 22, 1999, the second day of the hearing, Pilgrim objected to Smith's serving as the hearing officer, due to their conversation on September 16, 1999, in which, Pilgrim alleges, Smith promised to investigate the charges against Pilgrim. At the hearing, Smith denied that he promised to investigate the charges and recalled that his previous conversation with Pilgrim concerned primarily a package that Pilgrim expected to receive. Smith stated that he had no knowledge of the disciplinary matter prior to the hearing. After this exchange, Pilgrim stated that he did not wish to participate further in the hearing. Pilgrim was permitted to return to his cell for the remainder of the hearing.

  On September 24, 1999, the final day of the hearing, Luther gave public testimony regarding his investigation and the search of Pilgrim's cell. McNamara testified as well, and denied making Pilgrim any offer in exchange for his cooperation.

  Based upon the public testimony of Luther and McNamara, as well as the confidential testimony of Luther concerning statements made by the confidential informant, Smith found Pilgrim guilty of the demonstration charge and not guilty of the other two administrative charges. Smith imposed the following penalties: confinement in the SHU for thirty-six months; loss of all privileges, including use of the commissary, for thirty-six months; and loss of thirty-six months of good time credits ("good time credits sanction"). Following an administrative appeal by Pilgrim, the duration of each of the three sanctions was reduced to eighteen months.

  Pilgrim claims, inter alia, that: (1) Vaughn violated his right to due process by failing to provide meaningful pre-hearing assistance ("pre-hearing assistance claim"); (2) Smith violated his right to due process because he had (a) investigated the charges against Pilgrim previously, (b) prevented Pilgrim from obtaining documents or calling witnesses, and (c) found Pilgrim guilty on the basis of insufficient evidence ("procedural due process claim"); and (3) the penalties imposed upon him by Smith were excessively harsh and atypical of the deprivation endured by prisoners as an ordinary incident of prison life ("Sandin claim"). He seeks damages and the expungement of any record of the Tier III hearing from his facility and parole records.

  The defendants moved previously to dismiss Pilgrim's complaint, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. In a Report and Recommendation, dated February 27, 2003 ("2003 Report and Recommendation"), the Court recommended that the motion be granted with respect to all of the claims against Luther and denied with respect to the pre-hearing assistance claim against Vaughn and the procedural due process claim against Smith.*fn2 The Court found that the doctrine of qualified immunity did not shield Vaughn and Smith from liability on the pre-hearing assistance and procedural due process claims, since: (i) the rights those claims seek to vindicate were clearly established at the time of the allegedly wrongful acts; and (ii) it was not objectively reasonable to believe that the actions allegedly taken by Vaughn and Smith would not violate Pilgrim's due process rights. In an order dated January 16, 2004, your Honor adopted the 2003 Report and Recommendation in its entirety.

  In support of the instant application, the defendants contend that: (a) Pilgrim may not bring any of the claims in this action under 42 U.S.C. § 1983 because the good time credits sanction has not been invalidated by a state court or through federal habeas corpus review; (b) all the claims are barred by the Eleventh Amendment, as Pilgrim has sued the defendants in their official capacities; (c) the pre-hearing assistance claim against Vaughn fails to state a claim upon which relief may be granted and is barred by the doctrine of qualified immunity; (d) the procedural due process claim against Smith fails to state a claim upon which relief may be granted and is barred by the doctrine of qualified immunity; and (e) the Sandin claim against Smith lacks merit because there is no evidence that Pilgrim was deprived of a protected liberty interest and because there is no evidence that Smith was personally involved in the events about which Pilgrim complains.

  In support of the motion for summary judgment, the defendants have submitted, inter alia: (1) an amended statement pursuant to Local Rule 56.1 ("Rule 56.1 statement"); (2) a partial transcript of the deposition testimony of Pilgrim; (3) a partial transcript of Pilgrim's Tier III disciplinary hearing; (4) a copy of the IMR; (5) a copy of the Assistant Form used by Vaughn to record Pilgrim's requests for pre-hearing assistance; and (6) a copy of the administrative appellate decision that reduced the penalties assessed against Pilgrim.

  Pilgrim has submitted an affidavit in opposition to the defendants' application. The Court has also taken note of the affidavit previously submitted by Pilgrim, in opposition to the defendants' previous dispositive motion.


  Summary Judgment

  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 [1986]).

  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, 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).

  Legal Standards for Section 1983 Action

  "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).

  Personal involvement of the defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983. See Johnson v. Newburgh Enlarged School District, 239 F.3d 246, 254 (2d Cir. 2001); McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977) (citing Mukmuk v. Comm'r of Dep't of Correctional 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, 527-28 [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).

  Personal involvement of a supervisory employee in § 1983 actions may be shown by evidence that: (1) the defendant participated directly in the alleged constitutional violation; (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong; (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom; (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts; or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).

  A. The Intersection of Section 1983 and Habeas Corpus

  Section 1983 and the writ of habeas corpus are the two main legal avenues available to prisoners alleging civil rights violations arising out of prison discipline systems. The Supreme Court has clarified the relationship between the two in a trio of cases: Preiser v. Rodriguez, 411 U.S. 475, 93 S. Ct. 1827 (1973); Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364 (1994); and Edwards v. Balisok, 520 U.S. 641, 117 S. Ct. 1584 (1997).

  In Preiser, several state prisoners brought an action under § 1983, seeking to restore good time credits that were denied to them as an administrative disciplinary penalty. The Supreme Court held that habeas corpus was the exclusive remedy under those circumstances, since the prisoners effectively were challenging the fact or duration of their confinement, since the restoration of their good time credits would have resulted in the prisoners' immediate release. Preiser, 411 U.S. at 487-90, 93 S. Ct. at 1835-36. Furthermore, the Supreme Court stated that habeas corpus would be the exclusive remedy for such prisoners even if the restoration of good time credits, though not causing their immediate release, shortened the duration of the prisoners' confinement. Id. at 487, 1835.

  In Heck, the plaintiff sought damages for alleged constitutional violations before and during his criminal prosecution; he did not, however, challenge the duration of his confinement. Heck v. Humphrey, 512 U.S. at 478-79, 114 S. Ct. at 2368. The Supreme Court held that a habeas corpus action was Heck's exclusive federal remedy, as Heck's claim, if true, "necessarily demonstrate? the invalidity of the conviction." Id. at 481-82, 2369. The Supreme Court stated that:

[I]n order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal . . ., or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254.
Id. at 486-87, 2372. The Supreme Court stated further that "[w]e do not engraft an exhaustion requirement upon § 1983, but rather deny the existence of a cause of action." Id. at 489, 2373.

  Three years later, the Supreme Court held that the rule announced in Heck applied as well to actions challenging penalties imposed through prison disciplinary proceedings. Edwards, 520 U.S. at 643-44, 117 S. Ct. at 1586-87. In Edwards, the plaintiff claimed that the hearing officer was biased against him and prevented him from introducing witness testimony. Id. at 644, 1587. The plaintiff did not request restoration of his good time credits; he only requested damages. Id. at 643-44, 1586-87. Moreover, he did not attack the outcome of the hearing as a substantive matter, but claimed only that the procedures were faulty. Id. at 645, 1587. The Supreme Court held, however, based on Heck, that because a finding of bias on the part of the hearing officer would "necessarily invalidate" the outcome of the hearing, the plaintiff's § 1983 claim was not cognizable. See id. at 645, 1587. As the Supreme Court explained: "A criminal defendant tried by a partial judge is entitled to have his conviction set aside, no matter how strong the evidence against him." Id. at 647, 1588 (citing Tumey v. Ohio, 273 U.S. 510, 535, 47 S. Ct. 437, 445 [1927]).

  Accordingly, under the above-noted decisional law, a prisoner may not maintain a § 1983 action that, if successful, would undermine the validity of the fact or duration of the prisoner's confinement. However, the Second Circuit has held that actions that challenge only the validity of a disciplinary or administrative sanction, such as isolated or segregated confinement, that do not affect the overall length of a prisoner's confinement, may proceed under § 1983, even though the prisoner has not first invalidated the disciplinary judgment through state court or federal habeas litigation. See Jenkins v. Haubert, 179 F.3d 19, 27 (2d Cir. 1999) ("We conclude . . . that nothing in Supreme Court precedent requires that the Heck rule be applied to a challenge by a prisoner to a term of disciplinary segregation.").

  In the instant case, Pilgrim requests the "expungement of all entries of the . . . Tier III superintendent's hearing from all [of] plaintiff's institutional and parole records." To grant this request would necessarily result in the restoration of Pilgrim's lost good time. However, Pilgrim is serving a term of imprisonment of twenty-five years to life. See Declaration of Benjamin Lee, Exh. B, at 14. New York Correction Law § 803(1)(a) provides, in pertinent part:

Every person confined in an institution of the department or a facility in the department of mental hygiene serving an indeterminate or determinate sentence of imprisonment, except a person serving a sentence with a maximum term of life imprisonment, may receive time allowance against the term or maximum term of his sentence imposed by the court.
N.Y. Correct. Law. § 803(1)(a) (McKinney 2000) (emphasis supplied). As Pilgrim is serving a maximum term of life imprisonment, he is not entitled to good time credits. Therefore, the instant action, even if successful, cannot "restore" such credits, and it cannot affect the duration of or undermine the validity of Pilgrim's confinement.*fn3

  Consequently, the defendants' contention, that Pilgrim may not maintain this action under § 1983 because he has not invalidated the outcome of the disciplinary proceeding through a state court proceeding or federal habeas action, is without merit.

  B. Sovereign Immunity

  The defendants contend that Pilgrim has sued them in their official capacities.

  "The Eleventh Amendment bars a suit against state officials when the state is the real, substantial party in interest." Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 101, 104 S. Ct. 900, 908 (1984). However, the Eleventh Amendment does not bar suits against state officials sued in their individual capacities. See Hafer v. Melo, 502 U.S. 21, 31, 112 S. Ct. 358, 364-365 (1991). Section 1983 actions challenging the constitutionality of state officials' actions are not considered actions against the state. See Pennhurst, 465 U.S. at 102, 104 S. Ct. at 909. This is because, as a matter of law, acts performed by state officials that violate federal law cannot be authorized by the state. See id. (citing Ex parte Young, 209 U.S. 123, 28 S. Ct. 441 [1908]).

  The defendants' argument that the instant action is barred by the Eleventh Amendment is apparently premised on the assumption that Pilgrim has brought this action against the defendants in their official capacities. However, the defendants have not identified any portion of the complaint or any other material in the record that would support that assumption. Consequently, there is no basis upon which to conclude that the state of New York is the real, substantial party against whom Pilgrim has brought this action. Dismissal of the action is not warranted on this ground.

  C. Pre-Hearing Assistance Claim against Vaughn

  1) Qualified Immunity

  The defendants contend that Vaughn is shielded from suit by the doctrine of qualified immunity. The defendants made this argument in their previous dispositive motion, and the Court addressed it in its previous Report and Recommendation, which your Honor adopted in its entirety. The only evidence adduced since the adjudication of the previous motion is the Assistant Form. As this form apprised Vaughn explicitly of his statutory duty to render pre-hearing assistance to a prisoner in Pilgrim's situation, this evidence does not support the defendants' contention.

  As the defendants raise no arguments in support of the contention that were not addressed previously, the Court perceives no need to address it further. Vaughn is not qualifiedly immune from suit in this action. 2) Merits of Pre-Hearing Assistance Claim

  "Prison authorities have a constitutional obligation to provide assistance to an inmate in marshaling evidence and presenting a defense when he is faced with disciplinary charges." Eng v. Coughlin, 858 F.2d 889, 897 (2d Cir. 1988). Furthermore, the Second Circuit has held that confinement in a prison's SHU is a "disabling factor"*fn4 that "makes it nearly impossible for an inmate to formulate a defense, collect statements, interview witnesses, compile documentary evidence, and otherwise prepare for a disciplinary hearing." Id. For such inmates, the Fourteenth Amendment grants a right to "substantive assistance . . . provided in good faith and in the best interests of the inmate." Id. at 898. While the "assigned assistant's precise role" is not defined, it "certainly should include gathering evidence, obtaining documents and relevant tapes, and interviewing witnesses." Id. Additionally, the Assistant Form at Sing Sing apprises an employee assistant that his statutory duty to the inmate includes "interview[ing] potential witnesses identified by the inmate" and "obtain[ing] relevant documentary evidence."

  Pilgrim's account of the assistance he requested from Vaughn is not entirely consistent with the information recorded on the Assistant Form completed by Vaughn. In particular, the Assistant Form indicates that Pilgrim asked Vaughn to interview Luther and another employee, Corrections Officer Theodore; the Assistance Form makes no mention of McNamara, Gardner or inmate Ernest Henry. In addition, the Assistant Form does not reflect a request for an "Inmate Mass Demonstration form," despite Pilgrim's allegation that he asked for one.

  In any event, the Assistant Form provides an evidentiary basis upon which a reasonable trier of fact could conclude that Pilgrim asked Vaughn to obtain certain documents on his behalf and to interview certain witnesses. According to Pilgrim's deposition testimony, Vaughn did not provide any of the requested assistance and, instead, merely informed Pilgrim that the hearing officer would make all determinations about the presentation of documents and calling of witnesses during the hearing itself. The defendants offer no evidence to the contrary. Instead, they observe that Pilgrim was allowed to view certain documents at the time of the hearing and that he was asked — at the hearing — whether he wished to call any witnesses. However, those facts are not relevant to the instant claim, which concerns Vaughn's obligation to provide pre-hearing assistance. Eng imposes an obligation upon employee assistants, such as Vaughn, to provide substantive assistance to inmates prior to a disciplinary hearing. The Assistant Form apprised Vaughn that his role was to aid in "the preparation of the inmate's defenses to the charges." The defendants have adduced no evidence that Vaughn did anything beyond "doing nothing, and reporting it as such." See Eng, 858 F.2d at 898.

  As a reasonable trier of fact could conclude that Vaughn did not provide meaningful pre-hearing assistance to Pilgrim, Vaughn is not entitled to summary judgment on this claim.

  D. Procedural Due Process Claim against Smith

  1) Impartial Hearing Officer

  Pilgrim was entitled to have a fair and impartial hearing officer preside at his Tier III hearing. Due process considerations disqualify a prison official who witnessed an act charged against a prisoner, or who investigated the underlying charges, from serving as the hearing officer at the subsequent disciplinary hearing. See McCann v. Coughlin, 698 F.2d 112, 122 n. 10 (2d Cir. 1983); Powell v. Ward, 542 F.2d 101, 103 (2d Cir. 1976); Davidson v. Capuano, No. 78 Civ. 5724, 1988 WL 68189, at *8 (S.D.N.Y. June 16, 1988).

  Pilgrim states in his complaint that Smith, upon encountering Pilgrim in the SHU, told him that he would investigate the charges behind the IMR. The record shows that Smith disputed that account of his interaction with Pilgrim during the disciplinary hearing. Smith stated that he and Pilgrim talked primarily about the fact that Pilgrim had not received a package. Pilgrim agreed, at the hearing, that he and Smith discussed the package. Even if Pilgrim did apprise Smith briefly of the charges against him, the defendants point to an absence of evidence that Smith actually undertook any investigation of the charges. Indeed, Pilgrim has not submitted any such evidence. Although Pilgrim's deposition testimony suggests that Smith may have caused Pilgrim to be moved to a less isolated section of the SHU, that, without more, would not permit a reasonable trier of fact to conclude that Smith conducted any significant investigation into the circumstances of the charges pending against Pilgrim prior to the hearing.

  2) Right to Present Evidence and Call Witnesses

  A prisoner has a due process right to call witnesses and to present documentary evidence at a disciplinary hearing, although that right is limited by the legitimate safety and correctional goals of a correctional facility. See Wolff, 418 U.S. at 566, 94 S. Ct. at 2979; Kalwasinksi v. Morse, 201 F.3d 103, 108 (2d Cir. 1999). In addition to safety considerations, a hearing officer has the discretion to refuse to permit a witness to testify at a disciplinary hearing on the basis of "irrelevance" or "lack of necessity." Wolff, 418 U.S. at 566, 94 S. Ct. at 2980.

  The transcript of the disciplinary hearing indicates that Smith explained to Pilgrim that the unusual incident report did not exist, and that the IMR served as the contraband receipt. Pilgrim has not submitted any evidence to the contrary. There is no record of Pilgrim's requesting an "inmate mass demonstration" report before or during the hearing, and Pilgrim has submitted no evidence that Smith denied him access to any other pertinent documents that existed.

  Pilgrim contends that Smith wrongly barred witnesses from testifying on Pilgrim's behalf. Pilgrim alleges that he requested that a fellow inmate, Henry, testify at the hearing. The record shows that Smith, when discussing the prospect of inmate testimony, said that the only inmate whose testimony would be relevant to the case would be the confidential informant. Pilgrim has submitted no evidence to the contrary. In his deposition testimony, Pilgrim concedes that Henry would have served solely as a character witness and that Henry had no knowledge of the specific events leading to the disciplinary charges against Pilgrim. Pilgrim also alleges that Smith prevented McNamara and Gardner from testifying. However, although it occurred after Pilgrim absented himself from the hearing, McNamara did testify. The defendants point to an absence of evidence that Gardner, who did not testify, would have provided any testimony that was not redundant in light of McNamara's testimony. Indeed Pilgrim has submitted no evidence about what relevant, additional testimony Gardner might have provided.

  At the hearing, Pilgrim objected to Smith's decision not to reveal the content of the confidential informant's conversation with Luther publicly. In response, Smith informed Pilgrim that the release of Luther's confidential testimony, which referred to statements made by the confidential informant, would "place other inmates at risk and have a negative impact on facility order." The protection of confidential informants is a legitimate safety and correctional goal, and thus Smith's refusal to make such testimony public did not violate Pilgrim's right to due process. See Wolff, 418 U.S. at 566, 94 S. Ct. at 2979. Pilgrim has not submitted any evidence that would support a contrary conclusion.

  3) Sufficiency of Evidence

  Determinations of guilt in prison disciplinary hearings need only be supported by a "modicum" of evidence. See Superintendent v. Hill, 472 U.S. 445, 455, 105 S. Ct. 2768, 2774 (1985). The Supreme Court has expressly declined to adopt a more stringent evidentiary standard, due to the unique character of the prison environment. Id. at 456, 2774. Rather, "the relevant question is whether there is any evidence in the record that could support the conclusion reached [by the hearing officer or officers]." Id. (emphasis added).

  In this case, prison rules forbade inmates from urging other inmates to participate in "work-stoppages, sit-ins, lock-ins, or other actions which may be detrimental to the order of [the] facility." See 7 N.Y.C.R.R. § 270.2(B)(5). Smith inferred from the text of the "Wake Up" document, which he read into the record at the hearing, that the document was an exhortation to its readers to engage in work stoppages or other such actions. Smith also relied on Luther's confidential and public testimony which established that a previously reliable confidential informant implicated Pilgrim in the distribution of "Wake Up" to fellow inmates. Pilgrim conceded that he is the author of the document, and three copies of the document were found in his cell. Therefore, the defendants have presented evidence that there was an evidentiary basis for Smith's determination to find Pilgrim guilty of the demonstration charge. Pilgrim has not submitted any evidence that would permit a reasonable trier of fact to find that Smith's determination lacked such a basis. In light of the foregoing, Pilgrim has not demonstrated that there is a genuine dispute of material fact with respect to the procedural due process claim. Consequently, Smith is entitled to summary judgment on this claim.

  4) Qualified Immunity

  The defendants contend that Smith is also shielded from suit on the procedural due process claim by the doctrine of qualified immunity. The defendants made this argument in their previous dispositive motion, and the Court addressed it in its previous Report and Recommendation, which your Honor adopted in its entirety. As discussed in the previous Report and Recommendation, the procedural due process rights that Pilgrim alleges Smith violated were well established at the time the pertinent events occurred. However, when the Court previously addressed the question of qualified immunity with respect to this claim against Smith, the transcript of the disciplinary hearing was not before the Court. As discussed above, the transcript provides evidence that Smith did not violate Pilgrim's procedural due process rights during the hearing; such evidence supports a finding that it was objectively reasonable for Smith to believe that his acts did not violate the above-noted rights. See Anderson v. Creighton, 483 U.S. 635, 641, 107 S. Ct. 3034, 3039-40 (1987); Lennon v. Miller, 66 F.3d 416, 424-25 (2d Cir. 1995). As Pilgrim has not presented any contrary evidence, Smith is entitled to summary judgment on this claim on the additional ground of qualified immunity.

  E. Sandin Claim against Smith

  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 a punishment such as SHU 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, 23 (2d Cir. 2000).

  SHU confinement at Sing Sing 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 addition to these restrictions, Pilgrim's particular disciplinary penalty deprived him of other privileges, such as the ability to receive packages and to use the commissary and the telephone.

  With respect to the duration of confinement, the defendants appear to believe that Pilgrim's complaint focuses on the five or six days that he was confined prior to the disciplinary hearing. The defendants have misconceived Pilgrim's claim. Pilgrim alleges clearly that his confinement "in special housing unit for eighteen months" constituted "atypical and significant hardship . . . in relation to the ordinary incidents of prison life." See Compl. ¶ 15 (emphasis supplied).

  The Second Circuit has not established a "bright-line rule" governing the duration of SHU 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).

  Based on the case history in this circuit, the Court finds that Pilgrim's confinement in the SHU for eighteen months qualifies as an "atypical and significant hardship," and thus implicates a liberty interest.

  The defendants' contention that Smith had no involvement in this deprivation of liberty is without merit, as Smith was the officer who presided over the hearing and imposed a disciplinary penalty upon Pilgrim, albeit one that was reduced on appeal.

  However, as noted above, in order to prevail on a claim of this type, Pilgrim must demonstrate that his loss of liberty was the result of insufficient process. See Giano, 238 F.3d at 225. Consequently, Pilgrim's Sandin claim is logically dependent upon his procedural due process claim against Smith. As discussed above, Pilgrim has not submitted any evidence that would permit a reasonable trier of fact to conclude that Smith provided Pilgrim insufficient process in the course of the disciplinary hearing. Consequently, Smith is also entitled to summary judgment on the Sandin claim.


  For the reasons set forth above, the defendants' motion for summary judgment, made pursuant to Fed.R.Civ.P. 56, should be granted with respect to defendant Smith and denied with respect to defendant Vaughn.


  Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of the 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 C. Casey, United States District Judge, 500 Pearl Street, Room 1950, New York, New York 10007, and to the chambers of the undersigned, 40 Centre Street, Room 540, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Casey.

  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. Candair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1998); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).


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