The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
Before the Court is defendants' motion (# 42) for summary judgment, plaintiff's motion (# 50) for an extension of time to respond to defendants' motion, and plaintiff's cross-motion (# 51) for summary judgment. For the reasons stated below, plaintiff's motion for an extension of time is granted and his cross-motion and brief in response to defendants' motion for summary judgment is accepted as filed on July 20, 2006. In addition, defendants' motion for summary judgment is granted, and plaintiff's cross-motion for summary judgment is denied.
In its initial Decision and Order (# 5), the Court reviewed plaintiff's complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(a) and dismissed his Equal Protection claims, dismissed his Eighth Amendment and due process claims pertaining to a three-day water deprivation order, dismissed his denial of parole release and time allowance claims, dismissed his conspiracy claim under 28 U.S.C. § 1985, and dismissed his due process claim concerning the January 11, 1999, Elmira Correctional Facility disciplinary hearing. The Court allowed plaintiff's due process claims pertaining to the February 25, 1999, and March 2001 disciplinary hearings*fn1 to proceed.
The Court has complied the factual background information from the parties' submissions. Defendants filed a separate statement of facts, to which plaintiff responded in his cross-motion. Accordingly, the facts below are undisputed, except where indicated.
Plaintiff was an inmate in the custody of the New York State Department of Correctional Services ("DOCS") and was incarcerated at the Southport Correctional Facility ("Southport"), where each of the defendants was employed. On February 18, 2001 and February 22, 2001, Lieutenant Murray conducted a disciplinary hearing involving plaintiff.*fn2
At the hearing, plaintiff sought to call inmate Hernandez (# 96-A-1293), and Correctional Officers ("C.O.") Ashley, Dyers, Rodgers, Dininny and Matello, as witnesses. C.O. Rodgers testified at the hearing; however, the other witnesses requested by plaintiff did not testify. Lieutenant Murray completed the form indicating the reasons why he did not allow these other witnesses to be called. In particular, he wrote on the form that the witnesses did not observe the incident and therefore were not relevant. Plaintiff relates the following with regard to the February 2001 hearing:
4. On February 7, 2001, a tier III misbehavior report was issued to me. The disposition of guilt was on February 18, 2001, the main witness was denied to me. Upon appeal to Donald Selsky, on February 25, 2001, and on April 10, 2001, Donald Selsky modified.
5. On June 4, 2001 - Plaintiff submitted an Article 78 to the Chemung County Supreme Court, index No. 2001-1752-and on August 27, 2001, Hon. Judith F. Oshea J., reversed the decision of Donald Selsky, modification-and expungement of the records was ordered. And on September 10, 2001, Donald Selsky reversed his own decision of modification of 4/10/01. (Reynoso Decl. ¶¶ 4 & 5.) Plaintiff also relates the following with regard to a subsequent hearing on another misbehavior report:
6. On March 18, 2001, a tier II misbehavior report was issued to plaintiff on March 23, 2001, Lt. Donahue, Hearing Officer held the hearing in my absence and being found guilty, and given 30 days keeplock. While plaintiff was in his cell, C.O. Held, brought in the disposition of guilty - then plaintiff told him that plaintiff wanted to attend the hearing and the officer told plaintiff that he already signed the waiver form. Then plaintiff replied that the form has his name printed on top but it was his neighbor's signature that appeared- and it were the neighbor's initaials [sic] which were L.F. and my initials are I.R, and officer answer[ed] "It is to[o] late". Inmate _____ [sic] Laboy Franklin had the same misbehavior report. See, Exhibit 2 of C.O. Held declaration.
7. On March 25, 2001 - plaintiff appealed - and on March 29, 2001, Captain W. Wilcox answered it and affirmed.
8. On June 4, 2001 - Plaintiff filed an article 78 at the Chemung County Courthouse and this court affirmed the decision O'Shea J., on September 12, 2001. An appeal was taken to the Appellate Division acknowledge received the appeal brief and on February 6, 2002. The Third Department gave a schedule plaintiff - memorandum ot [sic] br [sic] heard on March 22, 2002. On March 12, 2002, ...