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Porter v. Wolczyk

January 29, 2007


The opinion of the court was delivered by: Lyle E. Strom, Senior Judge United States District Court


This matter is before the Court on defendants' motion for summary judgment (Filing No. 36) and plaintiff's response (Filing No. 37). The Court has reviewed the motion, defendants' statement of material facts (Filing No. 36-11), the transcript of the Tier III hearing, defendants' supporting brief and plaintiff's response, and finds that defendants' motion for summary judgment should be granted.

I. Summary Judgment Standard

On a motion for summary judgment, all reasonable factual inferences must be drawn in favor of the non-moving party. See, e.g., Savino v. City of New York, 331 F.3d 63, 71 (2d Cir. 2003)(citing Anderson, 477 U.S. at 255). However, to survive a motion for summary judgment, "the nonmoving party must come forward with 'specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)(emphasis omitted)(quoting Fed. R. Civ. P. 56(e))(citation omitted). "Conclusory allegations, conjecture, and speculation . . . are insufficient to create a genuine issue of fact." Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998)(citation omitted). Thus, "statements that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment." Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999)(citations omitted), cert. denied, 530 U.S. 1242 (2000).

"In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant may satisfy [its] burden by pointing to an absence of evidence to support an essential element of the nonmoving party's claim." Vann v. City of New York, 72 F.3d 1040, 1048 (2d Cir. 1995) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). A party "moving for summary judgment must prevail if the [non-movant] fails to come forward with enough evidence to create a genuine factual issue to be tried with respect to an element essential to its case." Allen v. Cuomo, 100 F.3d 253, 258 (2d Cir. 1996)(citing Anderson, 477 U.S. at 247-48). While the submissions of pro se litigants are liberally construed, see, e.g., Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994), the fact that the plaintiff is "proceeding pro se does not otherwise relieve [him] from the usual requirements of summary judgment." Fitzpatrick v. New York Cornell Hosp., 2002 U.S. Dist. LEXIS 25166, 2003 WL 102853, at *5 (S.D.N.Y. Jan.9, 2003)(citing cases).


On September 6, 2001, plaintiff Larry Porter ("Porter") was housed in the special housing unit ("SHU") at Auburn Correctional Facility ("Auburn"). That day, defendant corrections officers D. Cooper ("Cooper"), Dennis Hickey ("Hickey"), Daryl Ortlieb ("Ortlieb") and S. Blowers ("Blowers") were releasing SHU inmates for daily recreation. Hickey approached Porter's cell, had the gate unlocked and then opened the gate (Porter Tier III Hearing Transcript ("Hearing Tr."), p. 13). Porter was then ordered to exit the cell by backing out of it (Hearing Tr. p. 13). Porter began to back out of the cell, but when he got close enough to Hickey, he "mule-kicked" Hickey in the left knee before retreating back into his cell while threatening to "get" Hickey and the other officers. Id. Hickey wrote a misbehavior report ("MR") related to this incident. As a result of the kick, Hickey missed two days of work. Id. at 14.

Porter received a copy of Hickey's MR on September 7, 2001. Id. at 2. Porter was charged with assaulting Hickey and threatening several officers. Id. at 7. Porter was assigned a hearing assistant to help in his preparation for the Tier III hearing. Id. at 3. Hearing Assistant Hinman met with Porter on September 8, 2001, and assisted Porter by obtaining copies of various documents including relevant portions of SHU and commander logbooks as well as a copy of the Unusual Incident report ("UI") of the assault. Id. at 3-4. Porter complained that the copy of the UI was missing two pages.

The Tier III hearing commenced on September 11, 2001, before defendant Joseph Wolczyk ("Wolcyzk"). Id. at 1. Porter objected to not having been given a complete copy of the UI. Id. at 5. Porter also wanted to watch the surveillance video tape of the incident before he determined what witnesses he wished to call. Id. at 6. Wolcyzk and Porter viewed the surveillance video together two times. Id. at. 9-11. Afterwards, Porter asked to question all of the officers present at the time of the incident. Id. at 12. That day, only Hickey testified. Id. at 12-14.

The hearing reconvened on September 18, 2001. Id. at. 20. Porter acknowledged that he received a complete copy of the UI in the interim and had an opportunity to review the UI. Id. at 21. Officer Ortlieb testified that he observed Porter kick Hickey and heard Porter hollering threats at the officers present. Id. at 23-35. Porter asked to have Blowers and Cooper testify, but they were unavailable. Id. at 27, 35. The hearing recessed and then reconvened the following day when Cooper testified by telephone. Id. at 36. Before adjourning the hearing for the day, Wolcyzk informed Porter that they were nearing the end of the 14-day period for completing a hearing as specified in state regulations. Id. at 46. Wolcyzk was seeking an extension of the time period if he had difficulty arranging the testimony of Blowers. Id.

The hearing reconvened on September 21, 2001. Id. Wolcyzk informed Porter that he had been granted an extension of the hearing completion date until September 24, 2001, and showed Porter a copy of the document granting the extension. Id. at 47. Porter objected to the extension because it was not submitted until after the 14-day period had expired. Id. at 47-48. Wolcyzk acknowledged that the request was not submitted until September 21st, explaining that he had attempted to submit it earlier but had been unable to because the computer system was down and phone lines had been busy. Id. at 48. Porter's objection was noted for the record. Id.

Officer Blowers then testified that Porter kicked Hickey with great force and that Porter's action was unprovoked. Id. at 54-55. Next, Porter was given an opportunity to make a statement on his own behalf. Id. at 57-63. Porter admitted that he kicked Hickey. Id. at 67. As the hearing concluded, Porter indicated that he did not want to return for Wolcyzk's disposition, but instead requested that a copy be sent to his cell. Id. at 63-64. Wolcyzk agreed. Id. at 64.

Wolcyzk found Porter guilty both of assault on staff and making threats. Id. at 64-65. Because Porter was already in SHU confinement, he imposed a penalty of twenty-one (21) days restricted diet. Id. Wolcyzk prepared a Superintendent Hearing Deposition Rendered form which contained a statement of the evidence relied upon, the reasons for the disposition, and the penalty imposed. The document was delivered to Porter at 4:30 p.m. on September 21, 2001.

Porter filed an administrative appeal of Wolcyzk's disposition on September 24, 2001, which was denied with the disposition ...

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