The opinion of the court was delivered by: Leslie G. Foschio United States Magistrate Judge
On October 5, 2006, the parties to this action consented to proceed before the undersigned. The matter is presently before the court on Defendant's motion for summary judgment, filed May 30, 2007 (Doc. No. 16).
Plaintiff Edward Harrison ("Plaintiff" or "Harrison"), commenced this civil rights action on March 8, 2006, in the District Court in the Northern District of New York, alleging that while incarcerated at Five Points Correctional Facility ("Five Points" or "the correctional facility"), his rights to due process were violated by Defendant Department of Correctional Services ("DOCS") Lieutenant Mark Querns ("Defendant" or "Lt. Querns") with regard to a disciplinary hearing held on June 30, 2005. Essentially, Plaintiff claims that Querns, acting as a disciplinary hearing officer, found Plaintiff guilty of violating several DOCS rules despite the complete absence of any evidence to support such finding, Complaint ¶ 7, First Cause of Action, and that Querns was biased. Complaint ¶ 7, Second Cause of Action. On May 8, 2006, the case was transferred to the Western District of New York (Doc. No. 7). Defendant's answer (Doc. No. 9) was filed on July 27, 2006.
On May 30, 2007, Defendant filed the instant motion for summary judgment (Doc. No. 16), along with supporting papers, including a Memorandum of Law in Support of Motion for Summary Judgment (Doc. No. 17) ("Defendant's Memorandum"), a Statement of Facts Not in Dispute (Doc. No. 18) ("Defendant's Statement of Facts"), and the Declaration of Lt. Mark Querns in Support of Motion for Summary Judgment (Doc. No. 19) ("Defendant's Declaration"), with attached exhibits A through C ("Defendant's Exh(s). __"). On July 20, 2007, Plaintiff filed in opposition to summary judgment a document titled "Motion Against Summary Judgment (Doc. No. 24) ("Plaintiff's Response"). Oral argument was deemed unnecessary. Based on the following, Defendant's motion is GRANTED.
On June 25, 2004, twenty-two inmates, including Plaintiff, engaged in a work stoppage in the mess hall at Five Points, and refused an order by DOCS Sergeant D. Whaley ("Sgt. Whaley") to cease the stoppage and return to work. Although Plaintiff does not deny that he was involved in the work stoppage and failed to comply with Sgt. Whaley's order, Plaintiff maintains the work stoppage resulted from a request to speak with the watch commander. Following the work stoppage, Sgt. Whaley issued an Inmate Misbehavior Report ("the Misbehavior Report"),*fn2 charging Plaintiff, then assigned to work in the front of the prison mess hall, was involved with the work stoppage, in violation of DOCS rules 104.12 (leading, organizing, participating, or urging others to participate in a work stoppage demonstration), 107.10 (interference with an employee), and 106.10 (refusing a direct order).
A Tier III disciplinary hearing ("the disciplinary hearing"), conducted by Lt. Querns was held on the charges beginning on June 28, 2004 and concluding on June 30, 2004. Witnesses testifying at the hearing on DOCS's behalf included Sgt. Whaley (Hearing Tr.*fn3 at 9-14), and Sergeant Mindy ("Sgt. Mindy") (Hearing Tr. at 22-24), while inmates Vega ("Vega") (Hearing Tr. at 16-20), and Juan Martin ("Martin") (Hearing Tr. at 20-21), testified on Plaintiff's behalf. Corrections Officer ("C.O.") Conger ("Conger"), also testified on Plaintiff's behalf, although Conger's testimony was not recorded. Following the hearing, Defendant, on June 30, 2004, issued a Hearing Disposition ("Hearing Disposition"),*fn4 finding Plaintiff guilty on all three charges, and sentenced to six months in the special housing unit ("SHU"), six months loss of recreation, packages, commissary and telephone privileges, and loss of two months of good time allowance. Defendant specified that the guilty determination was based on Sgt. Whaley's Misbehavior Report and testimony at the disciplinary hearing establishing that Plaintiff participated in the work stoppage. The Hearing Disposition also explained that the guilty finging applied regardless of whether Plaintiff merely participated in, or was an instigator of, the work stoppage.
Plaintiff appealed the Hearing Disposition which, on April 29, 2005, was reversed for "failure to interview a requested [inmate] employee witness who could have provided relevant testimony." Defendant's Exh. B at 11. Despite this stated ground for reversal, Defendant maintains, and Plaintiff does not dispute, that the stated reason for the hearing decision reversal refers to the fact that the portion of the disciplinary hearing at which Conger testified was not recorded. Plaintiff asserts that Conger's testimony establishes that Plaintiff was not a leader of the work stoppage. This action followed.
Summary judgment of a claim or defense will be granted when a moving party demonstrates that there are no genuine issues as to any material fact and that a moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) and (b); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51 (1986); Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir. 1991). The party moving for summary judgment bears the burden of establishing the nonexistence of any genuine issue of material fact and if there is any evidence in the record based upon any source from which a reasonable inference in the non-moving party's favor may be drawn, a moving party cannot obtain a summary judgment. Celotex, 477 U.S. at 322. Once a party moving for summary judgment has made a properly supported showing as to the absence of any genuine issue as to all material facts, ...