The opinion of the court was delivered by: David G. Larimer United States District Judge
Plaintiff, Karriem Sweet, appearing pro se, commenced this action pursuant to 42 U.S.C. § 1983. Plaintiff, an inmate in the custody of the New York State Department of Correctional Services ("DOCS") alleges that defendant Rufus Cooks, a DOCS lieutenant who presided over a disciplinary hearing involving plaintiff in August 1997, violated his constitutional right to procedural due process. Plaintiff has also asserted claims against a number of unidentified "John Doe" defendants.*fn1 Defendants have moved for summary judgment.
Plaintiff alleges that Cooks found him guilty at an August 1997 disciplinary hearing, and sentenced him to 180 days in the Special Housing Unit, in violation of plaintiff's due process rights. The primary basis for this claim appears to be plaintiff's allegation that Cooks refused to call certain inmate witnesses requested by plaintiff. See Plaintiff's Statement of Material Facts ¶¶ 9, 10. Plaintiff also alleges that there was insufficient evidence presented at the hearing to support Cooks' determination. See Affirmation of Sheldon W. Boyce, Esq. (Dkt. #58) ¶¶ 4, 14.
Defendants contend that plaintiff's claim against Cooks should be dismissed based on plaintiff's failure to exhaust his administrative remedies as required by the Prisoner Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a). The PLRA provides in part that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." Id.
Typically, an inmate exhausts his claims by going through a three-step process. First, a grievance is filed with the Inmate Grievance Resolution Committee. Next, the inmate may appeal an adverse decision to the prison superintendent. Finally, the inmate may appeal the superintendent's decision to the Central Office Review Committee. Brownell v. Krom, 446 F.3d 305, 309 (2d Cir. 2006).
As this Court has previously explained, however, "[w]here an inmate's federal claims arise directly out of a disciplinary or administrative segregation hearing, . (e.g., a claim of denial of procedural due process), 'he exhausts his administrative remedies by presenting his objections in the administrative appeals process, not by filing a separate grievance instead of or in addition to his ordinary appeal.'" Rosales v. Bennett, 297 F.Supp.2d 637, 639 (W.D.N.Y. 2004) (quoting Flanagan v. Maly, 99 Civ. 12336, 2002 WL 122921, at *2 (S.D.N.Y. Jan. 29, 2002)); see also Rivera v. Goord, 253 F.Supp.2d 735, 750 (S.D.N.Y. 2003) ("Because Rivera raised, in his administrative appeal, his objections to the alleged conduct, he exhausted his administrative remedies regarding this claim through the appropriate correctional channels").
Based on that rule, I previously denied a pre-discovery motion for summary judgment by Cooks, on the ground that the record at that point did not show whether plaintiff had appealed Cooks' decision in the disciplinary hearing, and if so, whether plaintiff had raised the issues asserted in the case at bar. In that March 27, 2003 Decision and Order, I stated that "[i]f the plaintiff appealed directly from the outcome of the August 10 disciplinary hearing, and raised as an issue on that appeal the insufficiency of the evidence, he may have exhausted his administrative remedies on the third claim." 253 F.Supp.2d 492, 496 (W.D.N.Y. 2003). Observing that "[i]t [wa]s undisputed that the parties ha[d] yet to conduct discovery," I therefore decided to "deny the defendants' motion for summary judgment at th[at] time . ." Id.
The parties have now completed discovery, and defendants have renewed their motion as to the claim against Cooks, based on plaintiff's failure to exhaust. In support of their motion, defendants have submitted a copy of plaintiff's appeal from the August 1997 hearing before Cooks. See Declaration of Emil Bove (Dkt. #53) Ex. K.
It is difficult to discern from plaintiff's rambling, densely-worded administrative appeal precisely what the asserted grounds for the appeal were, but it clearly did not raise any claims concerning a failure or refusal to call witnesses. That claim, therefore, has not been exhausted, and must be dismissed.
I do note, however, that this claim also appears to be meritless. The Court has listened to the audio recording of the hearing, which shows that Cooks agreed to call the four inmate witnesses requested by plaintiff.*fn2 One of those inmates appeared by speakerphone and stated that he did not know plaintiff and that he knew nothing about the incident in question. Cooks stated that the other three were refusing to testify at all, and the record contains refusal-to-testify forms stating that all three had said that they either did not know plaintiff or that they knew nothing about the incident. Dkt. #53 Ex. F.
Nothing in the record suggests that Cooks did or failed to do anything concerning these requested witnesses that might have violated plaintiff's constitutional rights. There is no indication that Cooks refused to call these witnesses, or that there was any reason for him to doubt that they were in fact refusing to testify. See Hill v. Selsky, 487 F.Supp.2d 340, 343 (W.D.N.Y. 2007) ("Having been told that the inmates were refusing to testify, [the hearing officer] could reasonably have concluded that it would have been futile to call them, and his failure to do so or to go to their cells and interview them himself did not give rise to a constitutional violation").
Concerning exhaustion, there is one sentence in the administrative appeal, that, liberally construed, could be read as asserting that the evidence did not support Cooks' findings, at least as to one particular matter. The misbehavior report charged plaintiff with various infractions, based on an incident that occurred while several guards were attempting to pat-frisk plaintiff, who was suspected of concealing a razor. The officers alleged that during the frisk, a hand-held metal detector being use by one of the guards went off near plaintiff's left foot. When the guard ordered ...