REPORT AND RECOMMENDATION KEVIN NATHANIEL FOX UNITED STATES MAGISTRATE JUDGE TO THE HONORABLE DENISE L. COTE, UNITED STATES DISTRICT JUDGE
Plaintiff Larry Johnson ("Johnson"), proceeding pro se, brings this action, pursuant to 42 U.S.C. §1983, against defendants Charles Greiner ("Greiner"), Sing Sing Correctional Facility Superintendent, William J. Connolly ("Connolly"), Sing Sing Correctional Facility Deputy Superintendent, J. McNamara ("McNamara"), Sing Sing Correctional Facility Sergeant, W. Mack ("Mack"), Sing Sing Correctional Facility Sergeant, Glenn Goord ("Goord"), New York State Department of Correctional Services Commissioner, and Donald Selsky ("Selsky"), Special Housing Inmate Disciplinary Program Director, alleging his constitutional rights were violated when, inter alia: (1) Connolly presided at his Tier III disciplinary hearing*fn1 while at the same time participating in an investigation about him; (2) Connolly denied him the right to call hearing witnesses; (3) he was assaulted by several correction officers; (4) the misbehavior report, based on which he was punished, was insufficient and vague; (5) the defendants conspired against him, by singling him out for disciplinary action, because of his popularity with the prison population; and (6) the defendants retaliated against him because he would not cooperate with them by spying and reporting on other inmates. Before the Court is the defendants' motion for summary judgment, made pursuant to Fed. R. Civ. P. 56. The defendants contend: (a) the plaintiff's liberty interest was not implicated by his placement in the Special Housing Unit ("SHU"); (b) the plaintiff received due process; (c) although ultimately reversed, the hearing officer's decision was supported by some evidence; (d) the plaintiff failed to state a claim of conspiracy; (e) the plaintiff failed to state a claim against Mack; (f) the plaintiff failed to state a claim against Greiner; (g) the plaintiff failed to state a claim against Selsky; (h) Goord should be dismissed from the action because there is no respondeat superior liability under 42 U.S.C. § 1983; (i) a failure to follow state law, regulations, and/or directives, without more, is not a constitutional violation; (j) the Eleventh Amendment protects the defendants, in their official capacities, from suits for damages; and (k) they are shielded from liability, in an action brought against them in their individual capacities, by the defense of qualified immunity. The motion is addressed below.
Johnson alleges that, in December 1999, he was an inmate in the custody of the New York State Department of Correctional Services at Tappan ("Tappan"), an annex to Sing Sing Correctional Facility ("Sing Sing"), and employed as an Inmate Liaison Committee Representative ("ILCR"). He alleges that, on or about December 3, 1999, a suspicion search was conducted of his personal property and cubicle, while he waited outside. A document listing names of correction officers was reported to have been found, among Johnson's personal property, which resulted in Johnson being restrained, stripped and searched. After the search, Johnson was transported from Tappan to Sing Sing. The following day, Johnson inquired about his personal property and learned it had been sent for a more extensive search, pursuant to an order by Greiner and Connolly. Johnson alleges he was served with a misbehavior report on December 4, 1999, charging him with harassment, sex solicitation and possession of unauthorized contraband. He alleges further that a hearing was held in connection with that misbehavior report the following morning, which was dismissed due to a lack of evidence supporting the charges.
On December 5, 1999, Johnson was served with another misbehavior report charging him with: (i) participating in and urging others to participate in actions detrimental to facility order; and (ii) engaging in conduct involving threats of violence. The misbehavior report, signed by McNamara, stated that "[i]nformation gathered in an ongoing investigation into inmate group actions designed to disrupt the order of the facility, has identified this inmate as urging others to join this action and indicating that violence may result if they do not participate." Johnson asserts that the investigation was conducted by Connolly and McNamara.
A Tier III disciplinary hearing was scheduled concerning the December 5, 1999 misbehavior report. Johnson selected Mack to serve as his inmate assistant at the hearing and to help prepare his defense. Johnson asked Mack, among other things, to interview witnesses, to obtain written statements from anyone who had knowledge about the matter, to obtain documentary evidence, including unusual incident reports, memoranda, reports, video tapes and photographs, supporting the charges against him. Johnson alleges that, during his interview with Mack, he discovered that Connolly was in an adjoining room and that the door connecting that room with the room where the interview was conducted was open, so that Connolly could hear Johnson's conversation with Mack. Johnson asserts he made an objection about that to Mack but nothing was done to address his concerns. Subsequently, Johnson refused to sign a form ("assistance form") acknowledging the assistance Mack rendered to him.
Johnson's disciplinary hearing, presided over by Connolly, was held on December 13, 16 and 21, 1999. At the hearing, Johnson pleaded not guilty to the charges against him. On the first day of hearing, Johnson requested witnesses, and the hearing was adjourned accordingly. It appears from the transcript of the hearing that, when the hearing resumed, only one of the witnesses requested by Johnson, Correction Officer Acevito, testified. The correction officer stated he had never heard Johnson threaten or recruit any inmates to participate in a work stoppage or a demonstration.
McNamara testified against Johnson and explained that he had been conducting an investigation, from November 1999 to December 1999, of a planned mass demonstration by inmates. At the hearing, he produced a memorandum, addressed to Connolly, in which he indicated that a confidential source informed him that an unnamed inmate, during ASAT meetings and in his housing unit, urged other inmates to protest "Corrections, Parole and Governor Pataki's policies" and threaten them with violence if they refused to participate.
Johnson alleges that, after this memorandum was presented to Connolly and to him, he was told that Connolly would meet with McNamara in a private session to review information McNamara had obtained from the confidential informant.
Johnson challenged the credibility of the confidential informant and testified that there was no evidence against him, except that provided by the informant, to which he was not made privy. Johnson also protested McNamara's memorandum was too vague and general to support the allegations leveled against him and could apply to anyone. Johnson alleges he testified that the text McNamara had used in Johnson's misbehavior report was the exact text he used in misbehavior reports lodged against a dozen or more inmates, all lacking inmates' names, dates and housing locations. Johnson asked Connolly to remove himself as the presiding officer at his disciplinary hearing due to Connolly's involvement in the ongoing investigation about which McNamara testified. Johnson alleges that, at that time, Connolly made an off-the-record statement to him concerning the alleged inmate demonstration. Johnson requested that two additional witnesses, each a correction officer, be summoned to the hearing. Therefore, the hearing was adjourned.
Connolly determined that two correction officers Johnson requested as witnesses were not available. He noted that Johnson wanted these witnesses to testify whether they had heard him threaten to retaliate against any inmates if they fail to join in the alleged demonstration to disrupt the facility. Connolly found that testimony from these witnesses was not necessary because if the officers had heard any threats, they would have issued corresponding misbehavior reports, and none was issued.
Johnson was found guilty of the charges against him based on: (i) the information supplied by the confidential informant, as relayed by McNamara during the private hearing session; (ii) McNamara's testimony and written reports concerning Johnson's involvement in a group action to disrupt the order of the facility. He was sentenced to 18 months in the SHU, with a loss of privileges, 18 months recommended loss of good time, and loss of packages, commissary and telephone privileges. Johnson was also removed from his ILCR position.
On January 11, 2000, a discretionary review of Johnson's disciplinary hearing was conducted by the First Deputy Superintendent. He affirmed the hearing and the disposition. On January 13, 2000, Johnson appealed the disciplinary hearing decision to the Commissioner, New York State Department of Correctional Services. In his appeal form, Johnson asserted that, on December 21, 1999, and upon entering the SHU, he was deprived of his due process rights because, inter alia: (1) he was assaulted by three correction officers, who confiscated and deliberately destroyed his personal property, including his appeal form, disposition document and various other documents and legal research material concerning the appeal; (2) his misbehavior report was deficient, vague and served untimely; (3) charges preferred against him were fabricated; (4) his inmate assistant, Mack, failed to fulfill his duties; (5) the hearing officer participated in the investigation that led to the disciplinary charges; (6) the hearing officer made bias statements to him; (6) the confidential information used against him was hearsay and was part of a scheme to make him a scapegoat; and (7) he was sentenced based on incomplete and unreliable evidence. On February 18, 2000, each component of Johnson's disciplinary penalty was reduced from 18 months to 9 months.
On June 16, 2000, the Acting Director, Special Housing/Inmate Discipline reversed the superintendent's hearing because the tape of the hearing was incomplete, as the voices of witnesses indicated as having testified were not on the tape. He ordered the records containing references to the hearing to be expunged. As a result of the reversal, Johnson's good time credit was restored.
By the time the superintendent's hearing determination was reversed, Johnson, who had been transferred to the Upstate Correctional Facility, had spent approximately six and one-half months in SHU confinement. He alleges that, during that time, he suffered, among other things, serious emotional distress and mental anguish. In addition, the plaintiff contends he underwent psychiatric treatment. After his SHU confinement expired, Johnson filed the instant action.
Fed. R. Civ. P. 56 (c) provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." "A fact is 'material' for these purposes if it 'might affect the outcome of the suit under the governing law.' An issue of fact is 'genuine' if 'the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 212 (2d Cir. 2001) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 106 S.Ct. 2505, 2510 ). When considering a motion for summary judgment "[t]he court must view the evidence in the light most favorable to the party against whom summary judgment is sought and must draw all reasonable inferences in his favor." L.B. Foster Co. v. America Piles, Inc., 138 F.3d 81, 87 (2d Cir. 1998)(citations omitted).
The moving party bears the burden of showing that no genuine issue of material fact exists. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553 (1986). Once the moving party has satisfied its burden, the non-moving party must come forth with "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e); see Anderson, 477 U.S. at 250, 106 S.Ct. at 2511. "Summary judgment in favor of the party with the burden of persuasion, however, is inappropriate when the evidence is susceptible of different interpretations or inferences by the trier of fact." Hunt v. Cromartie, 526 U.S. 541, 553, 119 S.Ct. 1545, 1552 (1999).
In order to defeat a motion for summary judgment, the non-moving party cannot merely rely upon allegations contained in the pleadings that raise no more than "some metaphysical doubt as to the material facts." Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356 (1986). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment." Anderson, 477 U.S. at 247-48, 106 S.Ct. at 2510 (emphasis in the original). The non-moving party must offer "concrete evidence from which a reasonable juror could return a verdict in his favor." Id., at 256, 106 S. Ct at 2514. "The moving party is 'entitled to a judgment as a matter of law' [when] the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Celotex Corp., 477 U.S. at 323, 106 S.Ct. at 2552.
Where, as here, a litigant appears before the court pro se, that litigant's submissions should be read liberally and interpreted so as "to raise the strongest arguments that they suggest." McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999)(citation omitted). However, this does not mean that the pro se litigant is released from the typical requirements of summary judgment. A "bald assertion" made by the pro se litigant that is not supported by evidence will ...