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Bunting v. Nagy

September 27, 2006


The opinion of the court was delivered by: Richard J. Holwell, Judge


Plaintiff Johnnie Bunting, proceeding pro se, brings this action pursuant to 42 U.S.C. § 1983. Plaintiff alleges that defendant Lieutenant Michael Nagy violated his constitutional rights when he placed him in keeplock at the Green Haven Correctional Facility ("Green Haven") of the New York State Department of Correctional Services ("DOCS"). The Court has jurisdiction of this action pursuant to 28 U.S.C. § 1331. Defendant Nagy has moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure on the grounds that plaintiff has failed to state a claim for which relief may be granted, or in the alternative, for summary judgment on the basis of qualified immunity and/or, to the extent plaintiff sues defendant in his official capacity, on the basis that he is immune from suit under the Eleventh Amendment of the Constitution. For the reasons set forth below, defendant's motion for summary judgment [34] is GRANTED.


The following background facts, unless otherwise indicated, are undisputed. Plaintiff Bunting is an inmate currently incarcerated at Wende Correctional Facility in Alden, New York. At all times relevant to his claim, plaintiff was incarcerated at Green Haven in Stormville, New York. (Bunting Dep. 33:17--21.) Defendant Nagy is a retired employee of DOCS. (Nagy Aff. ¶ 1, Johnson Decl. Ex. B, Oct. 10, 2005.) As of July 23, 1998, the date of the altercation resulting in the misbehavior report and disciplinary hearing underlying this action, plaintiff was serving a disciplinary keeplock sentence for a weapons charge to which he plead guilty on May 28, 1998. (See Bunting Aff. ¶ 5; Bunting Dep. 34:08--35:12, 37:13--15; Johnson Decl. Ex. C.) Prior to the May 1998 weapons charge, plaintiff was in the general population, and not serving keeplock. (Bunting Dep. 38:08--11.) Defendant Nagy served as the hearing officer at the Tier III Superintendent's hearing ("Tier III hearing") for plaintiff's May 1998 weapons charge. (Bunting Aff. ¶ 5; Bunting Dep. 35:13--24; Johnson Decl. Ex. C.) After pleading guilty, Nagy sentenced plaintiff to a one-year sentence of keeplock confinement.*fn1 (Bunting Aff. ¶ 5; Johnson Decl. Ex. C.) Plaintiff sought discretionary review of the sentence; it was later modified to six months keeplock and six months suspended with the possibility of reinstatement. (Bunting Aff. ¶ 6; Bunting Dep. 37:07--09.) Therefore, from May 15, 1998*fn2 through November 15, 1998, plaintiff was serving the keeplock sentence attributable to the weapons charge he pled guilty to on May 28, 1998. (Def.'s Supp. Mem. 9 n.6; Johnson Decl. Ex. C.) Under governing regulations, time suspended from a disciplinary sentence is subject to subsequent revocation if the inmate violates disciplinary rules within a certain amount of time after the time is suspended. See N.Y. Comp. Code R. & Reg. tit 7 §§ 253.7(a)(4) (Tier II), 254.7(a)(4) (Tier III). Plaintiff does not contest the constitutionality of this disciplinary hearing or his initial keeplock sentence.

On July 23, 1998, Officer LeClaire ("LeClaire") charged plaintiff with disobeying a direct order, making threats, and interference with a corrections officer. (Amended Compl. ¶ 1.) According to the misbehavior report, plaintiff refused LeClaire's order to remove a sheet hung to block the view into his cell and threatened to harm LeClaire if he removed the sheet himself. (Nagy Aff. Tab 1 at DEF 14.)

On July 24, 1998, plaintiff received an inmate misbehavior report relating to the prior day's altercation. (Id. ¶ 1; Nagy Aff. Tab 1 at DEF 14.) Within four days, on July 28, 1998, a Tier II disciplinary hearing commenced at Green Haven, with Nagy serving as the hearing officer. (Amended Compl. ¶ 2; Nagy Aff. Tab 1 at DEF 12--13.) At the very start of the hearing, Nagy said to plaintiff "You look familiar.." (Hearing Transcript, Nagy Aff. Tab 2 ("Hr.") at DEF 19.) Plaintiff states that this statement was accompanied by a "knowing glare." (Bunting Aff. ¶ 8.) Defendant disputes that this statement was made with any "ulterior motive or reference to prior disciplinary proceedings." (Nagy Aff. ¶ 18.) Defendant states that if plaintiff looked familiar, it must have been because he had seen him during the course of performing his duties as a watch commander and corrections officer. (Id.)

As his defense, plaintiff argued that he was the victim of mistaken identity because he was at the hospital at the time of the July 23 incident involving LeClaire.

(Amended Compl. ¶¶ 3--4; Hr. at DEF 30--31.) The altercation underlying the misbehavior report occurred at approximately 5:50 p.m. on July 23, 1998. (Nagy Aff. Tab 1 at DEF 14.) According to the log book for that day, plaintiff was escorted to the facility hospital by Officer Stetz at 5:35 p.m. for an emergency sick call. (Hr. at DEF 21; Johnson Decl. Ex. D.) Plaintiff testified that it takes about one minute to walk from his cell to the facility hospital. (Bunting Dep. 41:09--14.) According to the "ambulatory health record," plaintiff was able to see the nurse at the facility hospital at 5:40 p.m. (Johnson Decl. Ex. E.) He complained of swelling and showed the nurse a small abrasion, approximately the size of a pencil point. (Id.) The nurse told plaintiff to wash his hands with soap and water. (Id.) There is no documentation to indicate the time plaintiff returned to his cell from the facility hospital. (Hr. at DEF 22.) Notwithstanding plaintiff's argument, defendant Nagy found there was sufficient evidence to establish that plaintiff had returned to his cell in time to participate in the altercation with LeClaire. (Nagy Aff. ¶ 16.)

Nagy also received testimony from two inmate-witnesses plaintiff identified to support his claim of mistaken identity. (Bunting Aff. ¶ 10; Bunting Dep. 47:04--11; 91:11--14.) According to plaintiff, the inmate-witnesses testified that plaintiff was not in his cell at the time the alleged altercation with LeClaire occurred. (Bunting Dep. 91:12-- 15.) The recordings of the inmate-witnesses' testimony were, perhaps mistakenly, not transcribed, and are therefore not part of the record before the Court. (See Ryan Aff. ¶ 3, Johnson Decl. Ex. F.)*fn3 In any event, Nagy found the inmate-witnesses' testimony was not credible. (Nagy Aff. ¶ 17.)

Plaintiff also requested the testimony of the witnessing officer who signed LeClaire's misbehavior report. (Hr. at DEF 23--25.) The witnessing officer's identity was undeterminable from the misbehavior report because the officer's signature was illegible. (Id.) Because the witnessing officer was not ascertained as of August 6, 1998-which, under the applicable regulations, was the date by which a disposition ought to have been reached-Nagy submitted a request for an extension to DOCS's Central Disciplinary Office in Albany ("Albany Office"). (Nagy Aff. ¶ 9; Nagy Aff. Tab 1 at DEF 16--17.) An extension was granted to complete the disposition by August 8, 1998. (Id. at DEF 17.) On August 8, 1998, Nagy requested a second extension through August 13, 1998 due to difficulty identifying the proper witness; it appeared the proper witness was unavailable and therefore unable to appear absent an extension. (Id.) The second application for an extension was made on a Saturday, so the Sunday August 9, 1998 hearing was conducted under the assumption that the Albany Office would grant the extension on Monday. (See Hr. at DEF 29--30.) Plaintiff formally objected to the timeliness of the hearing. (Id.) On August 10, 1998, the Albany Office granted the extension to August 13, 1998, rendering the August 9, 1998 disposition date proper. (Nagy Aff. ¶ 11; Nagy Aff. Tab 1 at DEF 17.)

Nagy spoke with four corrections officers, including LeClaire, in an attempt to determine the witnessing officer's identity. (Nagy Aff. ¶ 13; see also Nagy Aff. Tab 1 at DEF 12.) At some point Nagy suggested that perhaps the signature might belong to Officer Stetz, and plaintiff accordingly requested that Stetz testify at the hearing. (Bunting Dep. 73:13--75:18) Nagy spoke with Stetz off the record and outside plaintiff's presence; Stetz told Nagy that he had no knowledge of the altercation between plaintiff and LeClaire. (Nagy Aff. ¶ 13; Hr. at DEF 25.) Nagy prepared the requisite paperwork, Form 2176, documenting his conversation with Stetz. (Nagy Aff. ¶ 19.) Plaintiff signed Form 2176, which indicated that Nagy was denying plaintiff's request that Stetz testify at the Tier II hearing on the ground that Stetz had "no knowledge of [the] incident."(Nagy Aff. Tab 1 at DEF 15; Bunting Aff. ¶ 12; Nagy Aff. ¶ 19; Hr. at DEF 25.) Plaintiff now contests the propriety of defendant's off-the-record conversation with Stetz, though he does not claim that Stetz in fact witnessed the July 23, 1998 incident with LeClaire. (Bunting Aff. ¶¶ 11--13.) Plaintiff instead argues that Stetz's testimony at the hearing would have been material because his defense centered around his 5:35 p.m. visit to the facility hospital, and Stetz was the officer who escorted him there. (Pl.'s Opp'n Mem. 8.) However, at no time prior to the filing of his opposition to defendant's motion for summary judgment did plaintiff ever claim that Stetz's testimony was sought with respect to the hospital visit. In fact, plaintiff sought Stetz's testimony only to the extent he believed, due to Nagy's own suggestion, that Stetz might be the reviewing officer. (See generally Hr.; Bunting Dep. 75:02--18; 76:03--18; 76:18--77:05.)

Ultimately Officer McGrath was identified as the witnessing officer, and plaintiff was given the opportunity to question him on the final day of his disciplinary hearing, August 9, 1998. (Hr. at DEF 26--29.) McGrath testified that he remembered signing the July 23, 1998 misbehavior report, and that he saw and heard plaintiff cursing at and threatening LeClaire. (Id. at DEF 26, 29.)

After a brief adjournment, the hearing reconvened and Nagy found plaintiff guilty of the charges against him and sentenced him to thirty days of keeplock confinement.

(Amended Compl. ¶ 11; Hr. at DEF 32; Nagy Aff. Tab 1 at DEF 11.) Nagy also reinstated ninety-one days from the suspended portion of plaintiff's Tier III keeplock sentence. (Hr. at DEF 32); see also 7 N.Y. Comp Code R. & Reg. tit. 7 § 253.7(a)(4) (allowing suspension and reinstatement of time at Tier II disciplinary hearing); id. § 254.7(a)(4) (allowing same at Tier III superintendent's hearing). According to the disposition, the ninety-one days of reinstated suspended time was scheduled to start running on November 15, 1998, the date the May 1998 weapons charge six-month sentence was complete. (Nagy Aff. Tab 1 at DEF 11.) The thirty-day keeplock sentence for the charges in the July 23 misbehavior report was scheduled to begin running on February 13, 1999. (Id.) Thus, plaintiff was sentenced to serve 121 days keeplock as a result of Nagy's findings in the Tier II hearing. (Amended Compl. ¶ 9; Nagy Aff. ¶¶ 20, 22.)

Nagy prepared a written statement containing the following "reasons for disposition": "Inmate Bunting's previous poor disciplinary record considered. In this instance, Inmate Bunting disobeyed staff orders, interfered with an employee's duties, and threatened staff. This misbehavior will not be tolerated! This disposition is intended to serve as a deterrent to this and other inmates in the future." (See Nagy Aff. Tab 1 at DEF 13.) Thereafter, plaintiff appealed Nagy's sentence and on August 13, 1998, the Acting Deputy Superintendent of Security at Green Haven affirmed plaintiff's sentence. (Id. at DEF 8.) Plaintiff served the full 121-day sentence in addition to the six months he was already serving for the May 1998 weapons charge. Plaintiff claims he served a total of 335 days keeplock confinement. (Bunting Aff. ¶ 20.)

Plaintiff filed an Article 78 petition in New York State Supreme Court on or about October 9, 1998, challenging the Tier II hearing and his subsequent sentence. (Am. Compl. ¶ 11; Ryan Aff. ¶ 2; Ryan Aff. Tab 2.) Pursuant to plaintiff's claim, the court required Christopher Artuz, Superintendent at Green Haven and respondent, to submit a complete record of the Tier II hearing. (Ryan Aff. ¶ 3.) Artuz was unable to provide a complete record because there was insufficient documentation of the hearing. (Id.) As noted above, portions of the hearing were not transcribed and the recordings had been destroyed. (Id.) As a result, on April 21, 1999, prior to the disposition of the Article 78 proceeding, Robert Morton, the Acting Deputy Superintendent of Security at Green Haven, reversed and expunged the August 9, 1998 Tier II hearing for "administrative reasons." (Nagy Aff. Tab 1 at last page.) The New York Supreme Court subsequently dismissed plaintiff's Article 78 petition as moot. (Ryan Aff. Tab 1.) Plaintiff had completed the full length of the disciplinary sentence arising from the August 1998 sentence on March 15, 1999, before the misbehavior charges were expunged from his record. (See Bunting Aff. ¶ 20.)

As part of plaintiff's keeplock sentence, plaintiff's packages, commissary and telephone privileges were suspended during the 121-period of keeplock confinement. (Nagy Aff. Tab 1 at DEF 11, 13.) Plaintiff was also denied access to rehabilitating educational programs, work incentive programs, and wages due to inmates who are able to participate in such programs. (Amended Compl. ¶ 14.) While in keeplock plaintiff was allowed one hour of recreation each day, and three showers a week. (Bunting Dep. 103:12--17.) Plaintiff's access to law library materials was restricted to two items at a time. (Id. at 103:20--24.) Plaintiff also complains of stress, and that he once experienced chest pains, but does not allege that there was ever an occasion where he had a medical problem and did not receive medical attention. (Id. at 105:02--106:09.)

Although not alleged in his complaint, in his opposition to defendant's motion for summary judgment plaintiff complains that but for defendant's violation of his constitutional rights, plaintiff would not have been in keeplock on November 10, 1998, and therefore would not have been "involved in an incident which resulted in [his] sustaining a slash on [his] face at keeplock recreation." (Bunting Aff. ΒΆ 18.) Defendant disputes that the injury plaintiff sustained on November 10, 1998 is evidence of any hardship suffered by plaintiff while serving his keeplock sentence. Defendant proffers, in support of his position, the disciplinary package associated with the November 10 altercation. (Johnson Decl. Ex. K, Nov. 21, 2005.) On November 10, 1998, an inmate misbehavior report was prepared charging plaintiff with refusal to obey direct order, assault on inmate, and fighting. (Id. at DEF 345.) According to the reporting officer's description of the incident, there was a fight involving plaintiff and three other inmates in the keeplock recreation yard. (Id.) Despite two officers' attempts to order the inmates to break it up, the fight was not broken up until a response team arrived in the yard. (Id.) After the fight, plaintiff was taken to the clinic for medical evaluation due to a slash from a razor blade near his nose, but no weapon was ever recovered. (Id. at DEF 345, 347-48.) On November 23, 1998 a hearing was held and plaintiff pleaded guilty to the charges of fighting and refusing direct order, and not guilty to assault on inmate. (Id. at DEF 342.) The hearing officer admitted plaintiff's plea and ...

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