The opinion of the court was delivered by: Richard J. Holwell, United States District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff John Johnson brings this § 1983 action alleging that defendants violated his procedural due process rights in conducting and reviewing a disciplinary hearing for possession of contraband in prison. Defendants have moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure dismissing plaintiff's complaint. In a Report and Recommendation ("Report") dated October 19, 2006, Magistrate Judge Gabriel W. Gorenstein recommended that defendants' motion be granted in its entirety. See Johnson v. Goord, No. 04 Civ. 5919 (RJH)(GWG), 2006 U.S. Dist. LEXIS 76075, 2006 WL 2990029 (S.D.N.Y. Oct. 19, 2006). Plaintiff sought and obtained an extension of time in which to file his objections, and submitted them on December 14, 2006. Defendants sought and obtained an extension of time in which to file a response to plaintiff's objections, and submitted the response on February 2, 2006. The facts underlying plaintiff's action and relevant to defendants' motion are set forth in detail in Judge Gorenstein's thorough report, familiarity with which is presumed, and which is attached herewith for ease of reference.
A district court may designate a magistrate to hear and determine certain motions and to submit to the court proposed findings of fact and a recommendation as to the disposition of the motion. See 28 U.S.C. § 636(b)(1). The district court adopts a magistrate judge's report and recommendation when no clear error appears on the face of the record. See Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985). However, the court is required to make a de novo determination of those portions of a report to which objection is made, 28 U.S.C. § 636(b)(1)(C), by reviewing "the Report, the record, applicable legal authorities, along with Plaintiff's and Defendant's objections and replies." Badhan v. Lab. Corp. of Am., 234 F. Supp. 2d 313, 316 (S.D.N.Y. 2002). The court may then accept, reject, or modify in whole or in part recommendations of the magistrate judge. See Nelson, 618 F. Supp. at 1189. If, however, the party "makes only conclusory or general objections, or simply reiterates his original arguments, the Court reviews the Report and Recommendation only for clear error." Sanchez v. Dankert, No. 03 Civ. 2276 (LTS), 2004 U.S. Dist. LEXIS 3716, 2004 WL 439502, at *1 (S.D.N.Y. Mar. 9, 2004); accord Johnson v. City Univ. of New York, No. 00 CV 4964 (WK), 2003 U.S. Dist. LEXIS 10615, 2003 WL 21435469, at *1 (S.D.N.Y. June 19, 2003); Greene v. WCI Holdings Corp., 956 F. Supp. 509, 513 (S.D.N.Y. 1997). "If no objections are filed, or where objections are merely perfunctory responses, argued in an attempt to engage the district court in a rehashing of the same arguments set forth in the original petition, reviewing courts should review a report and recommendation for clear error." Edwards v. Fischer, 414 F. Supp. 2d 342, 346--47 (S.D.N.Y. 2006) (internal quotation marks and citations omitted).
Plaintiff has submitted eighty-two pages of objections, requiring a good deal of parsing and interpretation. Plaintiff's arguments are repeated numerous times throughout the objections, and are repetitive of the original arguments made in his opposition brief and sur-reply filed before Judge Gorenstein, with one additional argument not addressed in the Report. With the exception of that additional argument, the Court finds that the objections are merely a rehashing of the arguments addressed by Judge Gorenstein. The Court therefore need only review Judge Gorenstein's Report for clear error, while addressing plaintiff's additional argument de novo. Nonetheless, the Court will still respond directly to plaintiff's voluminous objections to Judge Gorenstein's Report.
In his objections, plaintiff argues: (1) that the inconsistency between his copy and the official copy of the misbehavior report, with the latter containing an additional sentence, denied him due process; (2) that there was insufficient evidence showing that the contraband belonged to him because other inmates had access to the pilaster in which it was found; (3) that defendants are not entitled to qualified immunity because the law governing the sufficiency of the evidence was clearly established; and (4) that the alleged failure of the corrections officer to follow state chain-of-custody regulations violated his due process rights. Additionally, plaintiff argues that defendant Selsky's review of his disciplinary ruling using a poor audio recording of the hearing violates his procedural due process rights.
I. Sufficiency of the Misbehavior Report
Plaintiff repeatedly contends that the late addition of a sentence to his misbehavior report stating that the contraband had tested positive as being marijuana was a due process violation. (See, e.g., Objections 3--5, 8--11, 20--24.) In doing so, he incorrectly focuses on the discrepancy between the official copy of the misbehavior report and the one he was given. Instead, the due process analysis concerning notice properly focuses on whether the inmate was adequately apprised of the charges against him so as to be able to prepare a defense. The Second Circuit has explained the function of notice as follows: "[N]notice serves to 'compel the charging officer to be [sufficiently] specific as to the misconduct with which the inmate is charged to inform the inmate of what he is accused of doing so that he can prepare a defense to those charges and not be made to explain away vague charges set out in a misbehavior report.'" Sira v. Morton, 380 F.3d 57, 70 (2d Cir. 2004) (quoting Taylor v. Rodriguez, 238 F.3d 188, 192--93 (2d Cir. 2001); see also Wolff v. McDonnell, 418 U.S. 539, 564 (1974) (advanced written notice allows inmate "to marshal the facts in his defense"). The court continued: "Toward this end, due process requires more than a conclusory charge; an inmate must receive notice of at least some 'specific facts' underlying the accusation." Sira, 380 F.3d at 70; see also id. at 73 ("due process requires a modicum of factual specificity" in the written notice). Thus, the critical question is not whether plaintiff's copy of the misbehavior report was identical to the official version or contained every piece of evidence available to the factfinder; rather, it is whether there was sufficient factual specificity to allow plaintiff to prepare his defense.
As noted by Judge Gorenstein, the misbehavior report indicated the date and time of the discovery of the contraband, its location, that the substance found was marijuana, packaged in nineteen bags, and the number and the approximate wording of the rule that was violated. (Report 15.) The only omission in the notice claimed by plaintiff is its failure to state that the contraband was tested and tested positive as being marijuana. Plaintiff makes no plausible argument for why the failure to mention the testing of the substance prevented him from preparing a defense. His principal defense at the hearing was that he had no knowledge that the contraband was hidden in the pilaster next to his cell and that it did not belong to him. The omission of the fact that the substance was tested is entirely irrelevant to that defense. Plaintiff did not present a defense that the substance was not marijuana, and indeed such a defense would have undermined his actual defense. Plaintiff's focus on the discrepancy between the two reports is to no avail where he can not demonstrate that an omission in his copy of the report prevented him from preparing a defense.
Plaintiff relies heavily on Grillo v. Coughlin, 31 F.3d 53 (2d Cir. 1994), in arguing that his notice was insufficient, but for a number of reasons, that case is inapplicable. First, Grillo involved discrepancies between the official copies of urinalysis forms and those provided to the inmate. Grillo's entire defense was based on deficiencies and inconsistencies in the forms he was provided with, which had unbeknownst to him been corrected in the official version. Thus, he had chosen and pursued a defense that was "compromised when the evidence he [was] shown differ[ed] from the evidence shown to the factfinder." Id. at 56. Plaintiff, in contrast, neither chose a defense that was undermined by the additional sentence concerning testing, nor would have had an additional defense had he been made aware of the fact that the substance was tested. If plaintiff had presented a defense that the substance was not marijuana, arguing that the substance had never been tested, then the discrepancy would have compromised his defense and Grillo would be applicable. He did not.
Second, in Grillo the discrepancy was discovered on the last day of the proceeding, and the hearing officer made "no attempt to explore how, when, and why the official forms were altered." Id. at 55. Here, in contrast, the discrepancy was discovered almost immediately, and the hearing officer on his own initiative called an additional witness in an attempt to explain it. While the Supreme Court has stated that advanced notice of twenty-four hours is required, it is far from obvious that a defect in notice, if immediately discovered and investigated, will give rise to a due process violation even if it impacts the inmate's anticipated (but not yet presented) defense. Regardless, plaintiff's defense was entirely unrelated to the fact of testing so the Court need not address that question. Grillo is inapposite. Plaintiff's advanced written notice satisfied the requirements of procedural due process.
II. Sufficiency of Evidence at the Hearing
Plaintiff argues throughout his objections that there was insufficient evidence to establish constructive possession of the contraband and asserts that it was error for Judge Gorenstein to find that constructive possession was established. (See, e.g., Objections 26, 36, 43.) Specifically, plaintiff calls attention to the fact that other inmates had access to the pilaster where the contraband was discovered and no instrument was recovered from his cell that could be used to obtain the contraband from the bottom of the tall, narrow pilaster.
First, plaintiff misconstrues the role of the Court. The Court is not evaluating the evidence de novo and reaching its own outcome. Rather, the Court must determine whether on the record before the disciplinary hearing officer, there was sufficient evidence to sustain the ruling. The standard by which the Court evaluates the sufficiency of the evidence was established in Superintendent v. Hill, 472 U.S. 445 (1985): "We hold that the requirements of due process are satisfied if some evidence supports the decision by the prison disciplinary board to revoke good time credits." Id. at 455; see also id. ("[r]equiring a modicum of evidence to support a decision"). The Court elaborated: "Ascertaining whether this standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board." Id. at 455--56. While the Court in Hill found the evidence before the disciplinary panel to be "meager," it nonetheless found that it was "some evidence." Id. at 457. As Judge Gorenstein noted, the Second Circuit has "not construed the phrase 'any evidence' literally," but instead has "require[d] that the evidence be reliable." Sira, 380 F.3d at 488. However, reliability as used in the Second Circuit looks to the trustworthiness of evidence, particularly the testimony of a confidential informant or victim, or hearsay evidence. See Taylor v. Rodriguez, 238 F.3d 188, 194 (2d Cir. 2001) (requiring independent inquiry by hearing officer into reliability of confidential informant before accepting testimony); Zavaro v. Coughlin, 970 F.2d 1148, 1152 (2d Cir. 1992) (same); Luna v. Pico, 356 F.3d 481, 488 (2d Cir. 2004) (requiring independent inquiry by hearing officer into reliability of victim before accepting testimony); Sira, 380 F.3d at 78 (requiring totality of the circumstances inquiry before accepting hearsay evidence). The standard for sufficiency of the evidence continues to be the "some evidence" standard set forth in Hill. See Friedl v. City of New York, 210 F.3d 79, 85 (2d Cir. 2000) (standard satisfied if "there is any evidence in the record that supports" the disciplinary ruling).*fn1
Second, plaintiff incorrectly states that Judge Gorenstein ruled that constructive possession was established. (See, e.g., Objections 43.) To the contrary, the Report found that the "there is a strong argument that the evidence again Johnson did not rise even to the level of 'reliable' evidence." (Report 21.) While Judge Gorenstein did not find it necessary to rule directly on the question because liability was precluded by qualified immunity, he found that constructive possession was arguably not established by sufficient evidence to comply with due process. The Court now turns to this conclusion. Initially, the Court does not believe it is at liberty to decline to rule on whether a constitutional right was violated. Under Saucier v. Katz, the Supreme Court mandated a two-step approach to a qualified immunity defense, requiring that courts first consider the threshold question of whether a right was violated, and only then consider whether the right was clearly established.*fn2 533 U.S. 194, 200--201 (2001). While the Second Circuit has found that such a sequence is not required in a limited number of circumstances where the underlying rationale of Saucier does not apply, none of those exceptions are applicable here. See Ehrlich v. Town of Glastonbury, 348 F.3d 48, 57--58 (2d Cir. 2003) (moving directly to qualified immunity question is appropriate where "existence of constitutional violation depends on the resolution of uncertain state law").
Plaintiff argues that defendants' reliance on the constructive possession doctrine, in the absence of any direct evidence and as applied to the facts of his case, violates his due process rights. A number of courts outside this circuit have found that the constructive possession doctrine can satisfy the "some evidence" standard where only a small number of inmates have equal access to the contraband. See, e.g., Mason v. Sargent, 898 F.2d 679, 680 (8th Cir. 1990) (holding that where two inmates had equal access to contraband, "some evidence" standard was satisfied); Hamilton v. O'Leary, 976 F.2d 341, 345--46 (7th Cir. 1992) (holding that where four inmates had equal access to contraband, "some evidence" standard was satisfied, but noting in dicta that where thirty-two inmates had equal access, the standard would likely not be satisfied); Harms v. Godinez, 829 F. Supp. 259, 264 (D. Ill. 1993) (holding that where six inmates had equal access to contraband, "some evidence" standard was satisfied); but see Hamilton, 976 F.2d at 347 (Posner, J., dissenting) (probability of guilt no greater than one in eight (12.5%) would not satisfy "some evidence" standard); Cardenas v. Wigen, 921 F. Supp. 286, 289 n.4 (D. Pa. 1996) (holding that where twelve inmates had equal access to contraband, "some evidence" standard was not satisfied); Broussard v. Johnson, 253 F.3d 874, 877 (5th Cir. 2001) (holding that where "approximately one hundred inmates" had equal access to contraband, "some evidence" standard was not satisfied).
As noted by Judge Gorenstein, plaintiff's case falls outside this line of cases because evidence demonstrated that other inmates did not have "equal access" to the contraband. (Report 21.) Rather, the testimony before the hearing officer by both a corrections officer and a staff assistant was that while it was "possible" that other inmates could have put something in the pilaster, it was unlikely they could do so without being detected. Indeed, the fact that a fishing pole-type instrument is required to retrieve the contraband makes such a possibility even less likely. Plaintiff incorrectly suggests that the relevant probability for purposes of a constructive possession analysis is one in 132, the number of inmates in the honor block, or even one in twenty-two, the number of inmates on the floor. Instead, if the Court were to attempt to come up with a mathematical probability, it would be necessary to reduce the additional number of inmates who had "some access" to the pilaster by the likelihood that they, as opposed to plaintiff, would actually do so.*fn3 Because quantifying the relative levels of access would inevitably be arbitrary, the Court does not find such a numerical inquiry to be helpful. The proper conclusion depends on the facts of each particular case.
Even looking at the facts in the light most favorable to plaintiff, the court holds that the disciplinary ruling was supported by "some evidence" and thus did not violate plaintiff's procedural due process rights. First, the contraband was discovered in the pilaster adjacent to plaintiff's cell, and was accessible from inside his cell. Second, the hearing officer was not presented with evidence that any other inmate has equal access to that pilaster. Third, while two witnesses testified that it was possible that other inmates in the block, or at least on the floor, could have used the pilaster, both (including a staff assistant without any institutional interest in seeing plaintiff found guilty) found it unlikely that other inmates could do so without being caught. It is particularly unlikely that someone could retrieve the contraband with a fishing-type instrument without being detected, even more unlikely one could do so on a regular basis. Finally, a New York state court has found that the discovery of contraband in a pilaster adjacent to an inmate's cell was sufficient evidence of possession even under the more rigorous "substantial evidence" test. See Nieves v. Goord, 768 N.Y.S.2d 711, 711--12 (N.Y. App. Div. 2003) ("Notwithstanding the fact that other inmates had access to the area where the contraband was found, the fact that the contraband was found in an area within petitioner's control gives rise to a reasonable inference of possession . . . [and] provides substantial evidence to support the determination of guilt." (citations omitted)). While Judge Gorenstein was correct that the evidence presented against plaintiff was "thin," it nonetheless amounted to "some evidence." See Hill, 472 U.S. at 457 ("Although the evidence in this case may be characterized as meager, and there was no direct evidence . . ., the record is not so devoid of evidence that the findings of the disciplinary board were without support or otherwise arbitrary."). Therefore, the Court alters Judge Gorenstein's Report to the extent it assumed the evidence of guilt in plaintiff's hearing did not satisfy the "some evidence" standard.
In the alternative, assuming that the evidence in plaintiff's hearing fell short of satisfying due process, Judge Gorenstein properly found that defendants were entitled to qualified immunity. Neither the Supreme Court nor the Second Circuit has defined the contours of the "some evidence" standard when multiple inmates have equal access to contraband, let alone when inmates have different levels of access. While a reasonably clear rule may be possible where inmates have equal access to contraband, the outcome where it is unlikely, but not impossible that other inmates could access the contraband "depends very much on the facts of each case." Brosseau v. Haugen, 543 U.S. 194, 201 (2004) (finding no clearly established right where proper outcome was heavily fact specific). As there are no cases in this circuit finding a procedural due process violation in circumstances similar to the case at bar, defendants plainly did not violate a clearly established right. Thus, they are entitled to qualified immunity.
III. Violation of State Chain-of-Custody Regulations
Plaintiff repeats the argument presented to Judge Gorenstein that his due process rights were violated when Corrections Officer Fraser failed to comply with state regulations governing handling of contraband. (Objections 36--38, 76--78.) As Judge Gorenstein correctly noted, it is federal constitutional standards, not state law or regulations, that define the requirements of procedural due process. See Russell v. Coughlin, 910 F.2d 75, 78 n.1 (2d Cir. 1990). Plaintiff is entitled to relief only if he can show a violation of his constitutional rights, not a violation of state laws or regulations. Due process requires that the evidence used against a prisoner in a disciplinary hearing has a "sufficient foundation." Soto v. Lord, 693 F. Supp. 8, 20 (S.D.N.Y. 1988); see also Shlomo Tal v. McGann, No. 88 Civ. 7678 (JSM), 1991 U.S. Dist. LEXIS 8129, 1991 WL 113776, at *2 (S.D.N.Y. June 17, 1991) ("When money damages are sought plaintiff must show that the chain of custody form is so untrustworthy that its use violated the due process clause."). In this case, there is evidence from Fraser that he held the contraband for a large part of the day while he conducted other searches and then transferred it to the corrections officer who tested the substance. While plaintiff may find Fraser's testimony incredible, it is not the role of the Court to evaluate the credibility of witnesses at a disciplinary hearing. See Hill, 472 U.S. at 455. Judge Gorenstein properly found that the chain of custody, as established by Fraser, did not render the contraband evidence so entirely unreliable as to require its exclusion to comply with due process. (Report 25.)
IV. Sufficiency of Record on Administrative Appeal
There is one claim brought up in plaintiff's objections and not addressed by Judge Gorenstein. That claim, properly understood, is that plaintiff's due process rights were violated when defendant Selsky reviewed plaintiff's disciplinary ruling on appeal without the aid of a complete audio recording or accurate transcript. (See, e.g., Objections 15--18, 24--26, 31.) As evidence of the poor quality of the audio recording used in the administrative appeal, plaintiff notes first that his disciplinary ruling was ultimately reversed because of the inadequacy of the audio recording and second that defendants hired audio forensic experts to enhance the audio recording for purposes of this proceeding. Even were this due process claim to have been properly set out in the complaint, it still must fail because the Court finds no due process right to having a disciplinary ruling reviewed with the aid of a perfect audio recording or complete transcript.
First, the Court has found no case establishing that the availability of an administrative appeal of a disciplinary ruling is required by due process. In Wolff, the Court noted, but did not take issue with the fact that "Nebraska does not seem to provide administrative review of the action taken by the Adjustment Committee." 418 U.S. at 565. Indeed, the Supreme Court has declined to decide whether an inmate even has a due process right to a judicial appeal of a decision impinging on a protected liberty interest. See Hill, 472 U.S. at 453 ("[W]e decline to decide in this case whether due process would require judicial review."). If plaintiff has no due process right to an appeal (administrative and possibly even judicial), then a fortiori he has no right to an appeal based on an accurate transcript of the disciplinary hearing.
Second, even if due process required that an inmate be granted an administrative appeal, it would not require that the appeal be based on an entirely accurate and complete transcript. While the recording of Tier III hearings is required by New York state law, it is not required to satisfy procedural due process. See Dixon v. Goord, 224 F. Supp. 2d 739, 744 (S.D.N.Y. 2002) ("While New York law requires that an electronic record of a disciplinary hearing be maintained, such a record is not constitutionally required." (citations omitted)); Auricchio v. Goord, 273 A.D.2d 571, 572 (N.Y. App. Div. 2000) ("[T]he failure to produce a transcript did not involve a substantial evidence issue or implicate any fundamental due process rights." (citations omitted)). Inmates are entitled to a written statement of the disposition and evidence relied on, not to audio recordings or an accurate transcript of the proceedings. See Wolff, 418 U.S. at 564--65. If inmates may be constitutionally deprived of a liberty interest without any recording of the proceedings, then it could hardly be a due process violation for such a hearing to be reviewed without a transcript.
Of course, it is preferable to have a complete recording and accurate transcript so as to improve the ability to properly decide an administrative appeal and create a record for judicial review. When defendant Selsky reviews a disciplinary hearing based on a poor audio recording or incomplete transcript, he does so at his own peril lest he incorrectly affirm an unconstitutional ruling. A written record also "helps to insure that administrators, faced with possible scrutiny by state officials and the public, and perhaps even the courts, where fundamental constitutional rights may have been abridged, will act fairly." Id. at 565. Nonetheless, the Court does not find that the failure to review a disciplinary hearing with the aid of a complete audio recording or accurate transcript constitutes an independent due process violation. The due process claims against defendant Selsky succeed or fail based on the alleged violations at plaintiff's disciplinary hearing. See Gilbert v. Selsky, 867 F. Supp. 159, 166 (S.D.N.Y. 1994)("If a supervisory official learns of a violation through a report or an appeal, but fails to remedy the wrong, that may constitute a sufficient basis for liability."); McCormack v. Cheers, 818 F. Supp. 584, 598 (S.D.N.Y. 1993)(looking to "whether the hearing itself was conducted in compliance with due process . . . to determine whether Selsky was personally involved in the alleged constitutional deprivations"). Because the Court has found that the disciplinary hearing did not violate plaintiff's due process rights, none of the supervisory officials are liable either.
Having reviewed plaintiff's new due process claim de novo, and having reviewed the Report for clear error, the Court adopts the Report and Recommendation of Magistrate Judge Gorenstein with the above modification. Defendants' motion for summary judgment  is granted and plaintiff's complaint is dismissed in its entirety. The Clerk of the Court is directed to close this case.
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
JOHN JOHNSON, Plaintiff, v. GLENN S. GOORD, et al, Defendants.
REPORT AND RECOMMENDATION
GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE
John Johnson, an inmate at Eastern New York Correctional Facility, brings this action pro se pursuant to 42 U.S.C. § 1983. Johnson alleges that his due process rights were violated by defendants in connection with an April 17, 2002 disciplinary hearing and subsequent proceedings. Defendants, employees of the New York State Department of Corrections ("DOCS"), now move for summary judgment. For the reasons stated below, their motion should be granted.
1. The Misbehavior Charges
During the relevant time period, Johnson was an inmate at Green Haven Correctional Facility, residing in the "Honor Block," also known as block D. On April 9, 2002, corrections officers "frisked" Johnson's cell as part of a large scale search of several cell blocks conducted in response to an anonymous tip indicating that inmates used pilasters to hide contraband. See Hearing Transcript ("Tr.")(reproduced as Ex. C of Declaration of John M. Schwartz in Support of Defendants' Motion for Summary Judgment ("Schwartz Decl.")(Docket #32)), at 109; see also Unusual Incident Report, dated April 9, 2002 (reproduced as Ex. L of Declaration of Donald Selsky in Support of Defendants' Motion for Summary Judgment)("Selsky Decl.")(Docket #34)), at D212. A pilaster is a vertical column that houses the cell's gate or locking mechanism, which although located outside the cell, is accessible from inside each of the adjacent cells as well as from outside the cells. Unusual Incident Report at D212. "The pilasters are . . . open at the top and sealed at the bottom." Id.
Although the search of Johnson's cell yielded no contraband, a search of its adjacent pilaster produced approximately 6.5 grams of a "green leafy substance" individually packaged in 19 bags and all contained within one zip-loc bag. See Fraser: Tr. 97; Inter-Departmental Communication, dated April 9, 2002 (reproduced as Ex. S to Declaration in Support of Plaintiff's Notice of Cross Motion for Partial Summary Judgment and Plaintiff's Rule 56(f) Opposition to Defendants' Motion for Summary Judgment ("Pl. Decl.") in Notice of Cross Motion for Summary Judgment)("Pl. Notice of Cross Motion")(Docket #41). This substance tested ...