The opinion of the court was delivered by: David G. Larimer United States District Judge
Plaintiff, Dean Wright, appearing pro se, commenced this action under 42 U.S.C. § 1983. Plaintiff, an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), alleges that defendants, all of whom at all relevant times were DOCS employees, violated his constitutional rights in connection with a disciplinary hearing on a misbehavior report issued against plaintiff in 2004. Defendants have moved for summary judgment. Defendants' motion is granted, and the complaint is dismissed.
The relevant facts, which are not in dispute, see Dkt. #18 at 2 (plaintiff's statement that he "do[es] not contest the facts as presented in the defendants' motion for summary judgment, rule 56 statement"), are as follows. On May 16, 2004, Correctional Officer D. Spencer issued a misbehavior report charging plaintiff with smuggling and possession of a weapon at 8:55 p.m. that same day. Specifically, the report stated, "On the above date and time [i.e., May 16 at 8:55 p.m.] I CO Spencer ... received Inmate Wright" at the reception area for the strip-frisk room. Dkt. #9-1 at 7. The report stated that Wright "claimed to have placed [a weapon] in his rectum/anus." Id. The report said that Wright was "given approx. one hour and twenty five minutes to retrieve said weapon," but that "Wright stated he could not get the weapon out." Id. According to the report, "Wright was then moved to ... special watch status." Id. After Wright had left the strip-frisk room, Spencer searched the room and, on a door ledge, found a folding knife, which had not been there before Wright had entered the room. Id.
According to the report, then, Wright arrived at the strip-frisk area from his cell at 8:55 p.m., stayed there for roughly 85 minutes, and was then moved to a special-watch cell. That would mean that he arrived at the special-watch area at about 10:20 p.m.
A disciplinary hearing on these charges began on May 26, 2004, before Captain Thomas Dixon. At the hearing, plaintiff attempted to show, through log entries made by correctional officers, that he was already in a special-watch cell at 8:55 p.m. on May 16, and that he remained there for several hours afterward. See Dkt. #9-1 at 23-24. If that were so, then plaintiff could not have been received at the strip-frisk room at 8:55, as indicated in the misbehavior report. Plaintiff argued to the hearing officer that the "charges should be dismissed" because plaintiff had established "everything that [he] was doing from 8:50 that day unless you're saying that this log is not right or that [the] misbehavior report is not right ... ." Dkt. #9-1 at 25.
Dixon responded that he was going to keep the relevant time records and that he "was curious about something." Dkt. #9-1 at 25. He then adjourned the hearing.
The hearing resumed on June 3, 2004. After one of the officers who was involved in the underlying events had testified, Dixon stated that because of the discrepancy concerning the time of those events, he believed that "Officer Spencer needs to be called the author of the misbehavior report ... ." Dkt. #9-1 at 28. There followed a brief adjournment, and the hearing resumed later that day, with Officer Spencer being called as a witness.
When Dixon asked Spencer about the "8:55 p.m." notation on the misbehavior report, Spencer stated that, contrary to what the report seemed to indicate, that was not the time that plaintiff had been received in the strip-frisk room, but the "time [that] the weapon [was] discovered in the strip frisk room." Dkt. #9-2 at 6. After reviewing a log book entry, Spencer testified that plaintiff had actually been received in the strip-frisk room area around 7:25 p.m. Dkt. #9-2 at 6. Spencer added that had this been brought to his attention at the time he was filling out the misbehavior report, he would have corrected the statement in the report indicating that plaintiff had been received in the strip frisk room at 8:55. Dkt. #9-2 at 7.
Plaintiff again objected, citing 7 N.Y.C.R.R. § 251-3.1(c)(1), which states that "[t]he misbehavior report shall include ... a written specification of the particulars of the alleged incident of misbehavior involved." He argued that he had not gotten "a misbehavior report that accurately describes the incident prior to the hearing so as [plaintiff] could prepare a defense ... ." Dkt. #9-2 at 8.
Dixon overruled plaintiff's objection, stating,
[T]he time ... of the misbehavior report ... states 8:55 and that is when Mr. Spencer discovered the incident discovered the misconduct. In the body of the misbehavior report it states, "[O]n the above date and time I C.O. Spencer while working reception 2nd received Inmate Wright." That is an error. It is a correctable error, has been corrected and has been established that what time Mr. Wright came on the unit Mr. Wright knew ... what time he came on the unit by presenting to this hearing officer as to mistake. I felt that he had ample opportunity to prepare [a] defense in this matter ... . [The] misbehavior report stands as I stated.
At the conclusion of the hearing, Dixon found plaintiff guilty of the charges against him. Noting that this was plaintiff's third weapon charge in seven years, as well as the type of weapon involved, Dixon imposed a penalty of 36 months' confinement to the Special Housing Unit ("SHU"). Dkt. #9-1 at 34. On appeal, Keith F. Dubray, Acting Director Special Housing/Inmate Disciplinary Program, reduced the penalty to 24 months. Dkt. #9-1 at 40. Donald Selsky, ...