United States District Court, S.D. New York
September 12, 2005.
PRINCE PILGRIM, Plaintiff,
DAVID LUTHER, CORRECTIONS OFFICER, SING SING CORRECTIONAL FACILITY, SGT. EDWARD J. VAUGHN, SING SING CORRECTIONAL FACILITY and JOSEPH T. SMITH, FIRST DEPUTY SUPERINTENDENT, SING SING CORRECTIONAL FACILITY, Defendants.
The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge
REPORT and RECOMMENDATION
TO THE HONORABLE RICHARD C. CASEY, UNITED STATES DISTRICT
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
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
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 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, 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,
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,
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 ).
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
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
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
"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 ).
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
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'
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
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
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
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
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.
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 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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