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Johnson v. Greiner

September 28, 2007

LARRY JOHNSON, PLAINTIFF,
v.
CHARLES GREINER, SUPT., WILLIAM J. CONNOLLY, DSS., J. CNAMARA, SGT., W. MACK, SGT., GLENN GOORD, COMM. OF DOCS, DONALD SELSKY, DIR. OF SHU., DEFENDANTS.



The opinion of the court was delivered by: Denise Cote, District Judge

OPINION & ORDER

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 ("Sing Sing") Superintendent; William J. Connolly ("Connolly"), Sing Sing Deputy Superintendent; J. McNamara ("McNamara"), Sing Sing Sergeant; W. Mack ("Mack"), Sing Sing Sergeant; Glenn Goord ("Goord"), New York State Department of Correctional Services Commissioner; and Donald Selsky ("Selsky"), Special Inmate Disciplinary Program Director. Johnson alleges that the defendants deprived him of due process of law at several stages of a prison disciplinary proceeding brought against him in December of 1999. As a result that proceeding, Johnson was moved into the Special Housing Unit ("SHU") at Sing Sing, where he was housed for over six months. While in the SHU, Johnson alleges that he was beaten by corrections officers, that his personal property was destroyed, and that he was made to strip in the presence of a female corrections officer. Johnson also alleges that the disciplinary proceeding in question was commenced against him in furtherance of a conspiracy among all of the defendants to retaliate against him because of his popularity in the prison and because he refused to cooperate with the defendants in spying on fellow inmates.

In proceedings before Magistrate Judge Kevin Fox,*fn1 defendants filed a motion for summary judgment, pursuant to Fed. R. Civ. P. 56, seeking dismissal of all of Johnson's claims. On July 16, 2007, Judge Fox issued a report ("Report") recommending that (1) summary judgment be granted as to all claims against defendants Greiner, Goord, and Selsky, and as to Johnson's conspiracy claim, but (2) that material issues of disputed fact required the denial of the motion with respect to the claims against defendants Connolly, McNamara, and Mack. The Report also concludes that while the defendants are not entitled to qualified immunity as to any of Johnson's claims, any claims for damages against the defendants in their official capacities are barred by the Eleventh Amendment.

Defendants timely submitted objections to those portions of the Report recommending partial denial of their motion for summary judgment, but did not object to the Report's finding that Johnson had raised a material issue of fact as to whether his placement in the SHU, as well as the events that took place while he was in the SHU, implicated his liberty interests under the Due Process Clause.*fn2 Johnson timely submitted an objection to the Report's conclusion that his claims against the defendants in their official capacities are barred by the Eleventh Amendment.

For the reasons stated in greater detail below, the Report's recommendations are adopted in part and rejected in part, and defendants' motion for summary judgment is granted in part and denied in part. In short, the record reveals that Johnson's disciplinary hearing was tainted by the troubling confluence of deficient notice and inadequate assistance. In addition, although Johnson was able to overcome these hurdles and present evidence during the hearing that thoroughly discredited one of the two confidential informants who testified against him, the allegations made by the remaining witness were not adequately probed by the hearing officer, and Johnson was not provided the factual details necessary to rebut those allegations. The combined result of these procedural missteps was that Johnson's disciplinary hearing concluded with a result that was not adequately supported by reliable evidence.

BACKGROUND

The following facts, drawn from the record the parties have presented on summary judgment, are undisputed or taken in the light most favorable to the plaintiff, unless otherwise indicated. In December 1999, Johnson was incarcerated in the Tappan annex to Sing Sing, where he was employed as an Inmate Liaison Committee ("ILC") representative. On or about December 3, a search was conducted of Johnson's personal property and cubicle while he waited outside. During the search, a corrections officer reported that he found a list of correction officers' names among Johnson's personal effects, as a result of which Johnson was restrained, strip searched, transported from Tappan to Cell Block-A in Sing Sing, and placed in a "keep-locked" status.

On December 4, Johnson was served with a misbehavior report charging him with harassment, soliciting sex, and possession of contraband. The charges contained in that report were subsequently dismissed.

On the afternoon of December 5, Johnson was served with another misbehavior report, charging him with participating in and urging others in action detrimental to facility order, and with conduct with the threat of violence. The report was signed by defendant McNamara, and provided the following "description of incident": "[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."

Following his receipt of the misbehavior report, Johnson was given the opportunity to choose, from a list of corrections employees, an assistant to help him prepare for the hearing on the charges contained in the second misbehavior report. Johnson chose defendant Mack, with whom he met on December 7. At that time, Johnson asked Mack to interview witnesses, collect written statements, obtain any "Unusual Incident" reports, as well as any other documentary evidence -- including, inter alia, the "inmate rule book," a copy of Department of Correctional Services' Directive Chapter V ("Chapter V"), any relevant "TO/FROM reports," and other reports, memoranda, and recordings created by anyone in the prison -- that would be relevant to the charges contained in the misbehavior report.*fn3

Johnson had a second meeting with Mack on December 10. Mack provided Johnson with copies of the inmate rule book and Chapter V, but none of the other requested information. During the meeting, Johnson noticed that the door to the room in which he and Mack were speaking was slightly open, and that Connolly was in the next room. Johnson brought this issue to Mack's attention but no action was taken.

On December 11, Mack came to Johnson's cell and asked him to sign an "Assistant Form" that purported to detail the requests made by Johnson and the actions taken by Mack in response to those requests. Johnson refused to sign the form because he believed that Mack had "fail[ed] to fulfill the most important part of his inmate assistant obligation," namely, to obtain the documentary evidence and written statements necessary for Johnson to mount a defense against the charges contained in the misbehavior report.

The hearing began on the morning of December 13, with defendant Connolly presiding.*fn4 Connolly read the misbehavior report to Johnson, who then pleaded not guilty to the charges. Johnson was asked if there were any witnesses he wished to call, and he replied, "I have no witnesses," but requested to see the information in support of the charges. Johnson also requested an opportunity to speak with the person making the accusations against him, or to see a written statement or tape of a statement from that person, in order to determine the evidentiary basis for McNamara's misbehavior report. Connolly agreed to call McNamara as a witness, and indicated his assent to Johnson's document request.

McNamara was then called into the room and testified that "more than one source, who has been reliable in the past, identified this inmate as participating in these actions" and as "making threats to people to participate in" a planned demonstration at the facility. Johnson sought more specific information regarding to whom he was alleged to have made these threats, but McNamara stated that providing Johnson with "specific times, dates, and actions" would "compromise the confidential sources." Connolly then stated that he would "do a review of those confidential informants."

In response to McNamara's testimony, Johnson requested the right to call three witnesses: corrections officers Benedito and Hicks, and an inmate named Deputy. Johnson stated that these witnesses could testify that they had never heard him make any of the threats described by McNamara. Johnson also requested specific information as to the dates and times he was alleged to have been making these threats, in light of the fact that he was rarely out of his "cube," other than at meal times and holidays, or to attend classes and go to the ILC office. Johnson called into question the reliability of McNamara's report and the credibility of his confidential informant, based on Johnson's observation that he had seen identical misbehavior reports issued against at least four other inmates. Connolly agreed to call these witnesses and provide Johnson the dates and times requested, and then adjourned the hearing to conduct a confidential session with McNamara to review the information provided by McNamara's informants.

During this recess, Johnson was given a copy of a memorandum from McNamara to Connolly, dated December 5, 1999 ("December 5 Memo"), which provided some additional detail regarding the factual basis for the charges. The December 5 Memo states, in relevant part:

I have conducted an investigation into an inmate mass demonstration to begin on 12/1/99 with inmate[s] "Stated Down" and including an inmate program refusal planned for 1/1/00. Confidential sources have identified this inmate as being involved in the recruiting for and implementation of this action. The confidential sources stated that [Johnson] in concert during ASAT meetings and on his housing unit actively urged other inmates to take action in protest of Corrections, Parole, and Governor Pataki's policies. These sources further stated that this inmate used his ILC status to recruit other inmate[s] to become involved in this demonstration. . . . After 12/1/99 this inmate began to threaten other inmates with physical harm and destruction of personal property if they did not participate in the [demonstration]. . . . The sources of this information are independent of each other and have personal knowledge of this inmate's involvement.

While Johnson examined the December 5 Memo, Connolly and McNamara conducted a confidential colloquy to review the evidence provided by McNamara's sources. After Connolly read the December 5 Memo into the record,*fn5 McNamara revealed that an inmate named Benjamin, who was already in the SHU for his role in the planned disturbance, named Johnson as one of the inmates involved in the planning of the event. Benjamin told McNamara that "Johnson's role was to encourage others to get the word out and report back to the committee on people who were not complying." McNamara said that he believed Benjamin's information to be credible because the other information he provided about the planned protest was confirmed by independent sources, and because Benjamin "was well aware of all participants [and] was part of the committee planning this." McNamara also reported that he questioned Benjamin regarding his motives for coming forward, and that Benjamin stated that he was concerned that the protests would turn violent, which he did not support. Connolly then asked if other informants had tied Johnson specifically to the protest, and McNamara informed him that an inmate named Prentice had told McNamara that "he attended [ASAT] meetings in which Inmate Johnson promoted and urged other[s] to participate" in the protest, and that when Prentice did not agree to do so, an ignited book of matches was thrown onto his bed. Prentice further stated that Johnson was the leader of his ASAT group, and that he used the ASAT meetings "as a forum to promote this demonstration." The colloquy concluded with Connolly noting the fact that McNamara had served seventeen years as a corrections officer, including fourteen on the "Crisis Intervention Team," and was an "expert" in interviewing and investigations.

Following the confidential colloquy, the hearing was resumed in Johnson's presence. Connolly began by stating that, "I have reviewed, on a confidential tape, Sergeant McNamara's confidential informants, and I will make a determination as to their credibility, but as of right now, they appear to be credible." Connolly then noted for the record that Johnson had been provided a copy of the December 5 Memo and that the hearing would be adjourned for twenty-four hours so that Johnson could review its contents. In response, Johnson requested that ASAT counselor Walker be called to testify, and that Johnson be provided with copies of the ASAT sign-in sheet for the past two months. Johnson stated that he was not a member of ASAT and had never been to an ASAT meeting, and therefore the accusation recounted in the December 5 Memo that he had made threats during ASAT meetings was demonstrably false.*fn6

The hearing reconvened three days later, on December 16. Correction Officer Acevito, who was assigned to Johnson's unit in Tappan, testified that he had never heard Johnson make any threats or conduct any recruiting associated with the planned protest. Acevito also testified, under questioning from Connolly, that it would not be possible to attend an ASAT meeting without signing in for that meeting.*fn7

At the conclusion of Acevito's testimony, Connolly noted that he had not been able to secure the attendance of officers Hicks or Benedito. Johnson stated that he still wanted them to testify, and Connolly agreed to "ask for an extension of this Hearing to get those witnesses." Connolly and Johnson also discussed, inter alia, the accusation contained in the December 5 Memo stating that Johnson had used his ILC status to recruit other inmates to participate in the demonstration. Johnson repeatedly denied that allegation.

The hearing concluded on December 21. Connolly opened by stating that he had been unable to bring Hicks and Benedito to testify, and asked Johnson to provide some detail as to what he believed they would say if they were available. Johnson said that Hicks and Benedito had worked on his unit at Tappan, and that they would testify that they had never heard him making threats or urging inmates to participate in any type of disturbance. Johnson also stated that the officers could describe Johnson's "rapport and [] interaction with the inmates" on his unit, and that, because Johnson had "a hard time communicating" with those inmates, the allegation that he threatened them was "ludicrous." Connolly conceded that, if these officers had heard Johnson making threats, they would have submitted a misbehavior report, and that because no such reports were submitted, it could be assumed that these officers would testify that they did not hear Johnson making any threats. Johnson eventually agreed, in light of this concession, that testimony from Hicks and Benedito was not necessary. Connolly then filled out, and Johnson signed, a "Form 2176" memorializing this agreement.

Johnson concluded his defense by listing a series of objections to the hearing process as a whole, including, inter alia, (1) that Connolly violated prison regulations by presiding over Johnson's hearing after being involved in the investigation into the charges against Johnson (as evidenced by the December 5 Memo, which was addressed to Connolly); (2) that this disciplinary action was being taken as revenge for Johnson's contemplated action against several corrections officers in his capacity as ILC representative; and (3) that his due process rights were violated because the evidence against him was not credible, particularly the allegation that he made threats during ASAT meetings, which the evidence showed Johnson had never attended.

Following Johnson's objections, the hearing was adjourned for approximately twenty minutes, after which Connolly returned and announced that he found Johnson guilty of all charges "based on the information relayed to me during the Hearing on a confidential tape, that I determined to be credible information, and the testimony and written report of Sergeant [Mc]Namara," which "gave specifics to the actions you took to urge this participation." Johnson was sentenced to 18 months in the SHU, 18 months of lost good time credits, loss of packages, commissary, and telephone privileges for 18 months, and removal from his position as ILC representative.

On January 11, 2000, this disposition was affirmed following a discretionary review by First Deputy Superintendent Joseph T. Smith. On January 13, Johnson appealed this result to the Commissioner's office. On the appeal form, Johnson reiterated the objections he offered at the hearing, and added new allegations regarding his treatment following his placement in the SHU. Johnson asserted that, during his admission to the SHU, he was assaulted by three corrections officers, who also confiscated and destroyed his personal property, including his copies of the legal documents related to ...


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