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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.

  III. ...

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