The opinion of the court was delivered by: William M. Skretny United States District Judge
In this action, pro se Plaintiff Michael Webb alleges, pursuant to 42 U.S.C. §1983, that Defendants violated his due process rights by failing to properly conduct disciplinary hearings while he was incarcerated at Green Haven Correctional Facility and Southport Correctional Facility in the custody of the Department of Correctional Services. Presently before the Court is Defendants' Motion for Summary Judgment.*fn1 (Docket No. 60). For the following reasons, Defendants' Motion is granted in its entirety.
Plaintiff's Complaint was filed on March 2, 2001. Because Plaintiff was granted in forma pauperis status, his Complaint was screened pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915(a). As a result of this screening process, it was determined that only Plaintiff's claims against defendants Selsky, Kearney and Nagy, in their individual capacities, were actionable. Defendants filed the instant Motion for Summary Judgment on October 16, 2006. Plaintiff's Statement of Disputed Facts was filed on January 3, 2007 and his Memorandum in Opposition was filed on January 8, 2007. Defendants did not file any reply papers. The Court (Elfvin, J.) deemed the matter submitted on the papers on January 12, 2007. The matter was reassigned to the undersigned on October 17, 2007. The facts underlying Plaintiff's claims are discussed below.
1. 1997 Green Haven Hearing
On August 11, 1997, Plaintiff was ordered to "double bunk" in a cell at the Green Haven Correctional Facility. (Plntf's Rule 56 Stmt. ¶ 2). Plaintiff refused to do so and was charged with interference with an employee, threats and refusing a direct order. (Plntf's Rule 56 Stmt. ¶ 3.) In preparation for his hearing on the charges, Plaintiff requested that he be provided with the medical and mental health forms permitting him to be double bunked. (Plntf's Rule 56 Stmt. ¶4; R. 122-23).*fn2 In a letter to his legal assistant, Plaintiff also asked for the "mental health professional who reviewed my records and approved me for double bunking status." (R. 123).
On August 17, 1997, defendant Nagy commenced the disciplinary hearing. (Plntf's Rule 56 Stmt. ¶ 6). At the hearing, Plaintiff argued that his medical condition precluded him from double bunking, (R. 133), and requested that Nagy call various witnesses whose names were unknown to Plaintiff. (Plntf's Rule 56 Stmt. ¶ 7; R. 132-33.) Defendant Nagy adjourned the hearing and instructed Plaintiff to go on sick call and be seen by a doctor, physician's assistant or registered nurse to obtain a written statement documenting his medical preclusion from double bunking. (Plntf's Rule 56 Stmt. ¶ 8; R. 134). Nagy also instructed Plaintiff to obtain the names of any other witnesses he wanted to call. (R. 134).
Nagy reconvened the hearing on August 20, 1997. Nagy called as a witness, Nurse Faour who appeared at the hearing with Plaintiff's medical records. (Plntf's Rule 56 Stmt. ¶ 10; R. 135). Faour testified that based on Plaintiff's medical records, including a physical examination conducted on August 19, 1997, Plaintiff was not precluded from double bunking. (R. 135-36). Plaintiff interposed an objection during Faour's testimony, but Nagy instructed him to hold his objection and the basis of the objection was not articulated. (R. 135). When Nagy provided Plaintiff with an opportunity to speak, Plaintiff only raised an objection to Nagy presiding over the hearing because he claimed that only a Captain or the Superintendent could preside over a Superintendent's hearing. (R. 137). No other witnesses were called or requested by Plaintiff during the remainder of the hearing.*fn3
On August 20, 1997, Nagy found Plaintiff guilty of the charges and imposed a penalty of 120 days*fn4 confinement in his cell, loss of packages, commissary and phone and recommended the loss of six months of good time credits. (Plntf's Rule 56 Stmt. ¶ 12; R. 138). Plaintiff appealed the determination to defendant Selsky. On October 21, 1997, Selsky modified Plaintiff's sentence by dismissing the charge of interference with an employee and reducing Plaintiff's punishment to 90 days keeplock confinement and loss of privileges and recommended the loss of three months of good time credits. (Plntf's Rule 56 Stmt. ¶ 12; R. 140).*fn5 Plaintiff served 90 days in keeplock confinement from August 11, 1997 to November 9, 1997 at Green Haven, Wende and Attica correctional facilities. (Plntf's Rule 56 Stmt. ¶ 19; R. 93).*fn6 Plaintiff filed an Article 78 proceeding challenging the outcome of the hearing. While the Article 78 proceeding was pending, Plaintiff's sentence was administratively reversed, and thus the Article 78 proceeding was dismissed as moot. (Plntf's Rule 56 Stmt. ¶ 18; R. 203-04).
Plaintiff testified at his deposition concerning the conditions of his keeplock confinement. Plaintiff was confined to his cell for 23 hours per day with one hour outside of his cell for recreation. (R. 94-95). Plaintiff chose not to avail himself of the hour of recreation and instead chose to remain in his cell for 24 hours per day. (R. 95). Depending on the facility at which Plaintiff was housed, his cell was located in general population, or in a unit specifically designated for keeplock. (R. 94). Plaintiff took meals in his cell but was permitted visitors in accordance with the facility's regular schedule. (R. 95, 96).*fn7
2. 1998 Southport Hearing
On May 13, 1998, while incarcerated at the Attica Correctional Facility, Plaintiff was again charged with several disciplinary infractions, including assault on staff, violent conduct, creating a disturbance and interference with an employee. (Plntf's Rule 56 Stmt. ¶ 20). A rehearing*fn8 commenced on August 20, 1998, by which time Plaintiff had been transferred to Southport Correctional Facility. (Plntf's Rule 56 Stmt. ¶ 24). Defendant Kearney presided over the rehearing at Southport. The rehearing was tape recorded, however, large portions of that recording were inaudible and thus were unable to be properly transcribed.*fn9
Plaintiff requested that testimony from nine inmates be taken as part of his defense. (Plntf's Rule 56 Stmt. ¶ 25; R. 163). None of the inmate witnesses whose testimony was sought by Plaintiff resided at Southport. During the hearing, Kearney indicated that several of the inmates had refused to testify and Kearney reviewed the refusal forms with Plaintiff. (R. 168-170). Kearney also indicated that two inmates, Sales and Vasquez had agreed to testify, and a third inmate, McKinney had submitted a written statement. (R. 173-74). At some point during the hearing, Plaintiff was removed for being disruptive. The incident leading to Plaintiff's removal was not recorded. Shortly after the incident, however, Kearney placed the following statement on the record:
The time is 1:42 p.m. I was just about to reconvene the tier hearing on Webb, Michael, Webb 90 Alfa 4906. Mr. Webb came into the uh hearing room, refused to speak to the hearing officer, and then un referred to the hearing officer as another one. Stating that I was a house nigger. Uh the inmate has been removed from the hearing room. I am going to continue the hearing without inmate Webb.
During the remainder of the hearing, Kearney telephoned Attica Correctional Facility and attempted to elicit testimony from inmates Sales and Vasquez.*fn10 (R. 186). Kearney's discussion with inmate Sales was recorded. The portions of Sales' responses to Kearney's questions reveal that Sales had no recollection of the incident. (R. 186). Other portions of Sales' responses were inaudible. The recording indicates that inmate Vasquez was also asked various questions but Vasquez's responses were not audible on the tape. (R. 186). In a summary of the questioning of the inmates, Kearney stated that he took testimony from inmate Sales and that inmate Vasquez initially disclaimed knowledge of the incident and then claimed to be unable to speak English. (R. 155). Kearney also heard testimony from Lt. Dixon, who did not see the beginning of the incident (and hence could not testify as to whether Plaintiff had committed the assault) but who witnessed the attempts to restrain Plaintiff.
At the conclusion of the rehearing, Kearney adjudged Plaintiff guilty of assault on staff, violent conduct and interference with an employee*fn11 and imposed a penalty of 465 days in the Special Housing Unit ("SHU") and loss of other privileges, and recommended the loss of 12 months of good time credits. (Plntf's Rule 56 Stmt. ¶ 39; R. 190). Plaintiff appealed that determination to defendant Selsky who affirmed the determination and penalty on November 13, 1998. (R. 196). On June 4, 1999, however, Selsky reduced Plaintiff's penalty to 12 months in the SHU and loss of 12 months good time. (R. 197-98). Plaintiff filed an Article 78 proceeding challenging his August 1998 rehearing and, on December 21, 1999, the New York State Supreme Court, Chemung County, vacated the guilty determination and ordered expungement based on Kearney's failure to comply with state law requirements that he verify the inmates' refusals to testify. (R. 199-201).*fn12
Plaintiff contends that his procedural due process rights were violated by Nagy's failure during the 1997 disciplinary hearing to call the facility physician rather than a nurse as a witness, and by Kearney's failures during the 1998 disciplinary hearing to (1) verify that the inmate witnesses called by Plaintiff had actually refused to testify; and (2) preserve on the record the reasons why testimony was not taken from inmate witnesses Sales and Vasquez; and (3) improperly removed Plaintiff from the hearing. Plaintiff argues that Selsky ...