The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge
Pursuant to 28 U.S.C. § 636(c), the parties have consented to have the undersigned conduct any and all further proceedings in this case, including entry of final judgment. Dkt. #16.
Plaintiff filed this pro se action seeking relief pursuant to 42 U.S.C. § 1983. Dkt. #1. Plaintiff alleges that she was denied procedural due process at a December 8, 2004 disciplinary hearing. Id. Plaintiff further alleges that, notwithstanding the reversal of the hearing officer's determination and the expungement of her disciplinary record, the penalty imposed following the finding of guilt, to wit, two months keeplock confinement, two months loss of recreation, packages, commissary and phone privileges, and the time she served in the Special Housing Unit, forty-nine (49) days, violated her due process rights. Id. In her complaint, plaintiff seeks the following relief: (1) injunctive relief in the form of training to be provided to the defendants concerning "gang signs"; (2) $7,350 in compensatory damages; (3) $47 in lost wages; and (4) $1 in "nominal damages." Id.
Currently before the Court is plaintiff's motion to strike defendants' answers to the complaint and for summary judgment (Dkt. #34) and defendants' cross motion for summary judgment (Dkt. #39). For the following reasons, defendants' cross-motion for summary judgment is granted and plaintiff's motion to strike defendants' answers to the complaint and for summary judgment is denied as moot.
Plaintiff, proceeding pro se, filed this action on July 11, 2005, pursuant to 42 U.S.C. § 1983, seeking injunctive relief, compensatory damages, lost wages and punitive damages for a violation of her constitutional rights under the Eighth and Fourteenth Amendments to the United States Constitution during her period of incarceration at the Albion Correctional Facility ("Albion"). Dkt. #1. Specifically, plaintiff complains that on December 6, 2004, while she was incarcerated at Albion, Sergeant Frost, while making rounds in plaintiff's housing unit with Officer Stickney, ordered Officer Stickney to confiscate a photograph on plaintiff's board because it was "gang-related" and further ordered Officer Stickney to issue plaintiff a misbehavior report for possession of gang-related contraband. Id. at ¶ 14. Plaintiff further alleges that Sergeant Frost failed to properly investigate the matter. Id. According to plaintiff, defendant Furlani, in conducting the disciplinary hearing, failed to take plaintiff's testimony into consideration and improperly considered plaintiff's disciplinary record as part of the evidence in reaching his determination. Id. Finally, defendant Durfee is alleged to have had or should have had some knowledge and/or notice of the practices and procedures employed by the officials at Albion. Id.
At all times relevant to the allegations in the complaint, plaintiff was in the custody of the New York State Department of Correctional Services and was confined at Albion located in Albion, New York. Dkt. #1, ¶ 2. Defendants were assigned to the Albion Correctional Facility. Dkt. #40, ¶ 2. Specifically, at all times relevant to the allegations in the complaint, defendant Sandra Durfee ("Durfee") was serving as the Acting Superintendent of Albion (Dkt. #41, ¶ 1), defendant Steven Furlani ("Furlani") was employed as an Education Supervisor at Albion (Dkt. #42, ¶ 1), defendant Frost ("Frost") was employed as a Sergeant at Albion (Dkt. #11, ¶ 3) and defendant T. Stickney ("Stickney") was employed as a Corrections Officer at Albion (Dkt. #12, ¶ 3).
On December 6, 2004, plaintiff was housed in unit K-2, cube #3. Dkt. #1, ¶ 14; Dkt. #40, ¶ 15. At approximately 6:55 p.m., on December 6, 2004, defendants Frost and Stickney were making rounds in housing unit K-2 and observed a photograph on the wall in cube #3 of a person purportedly showing a gang sign. Dkt. #1, ¶ 14; Dkt. #40, ¶ 14. Defendant Frost ordered defendant Stickney to confiscate the photograph because it was gang-related and to issue a misbehavior report and a contraband receipt. Dkt. #1, ¶ 14; Dkt. #40, ¶¶ 16-17. Thereafter, defendant Stickney issued plaintiff an Inmate Misbehavior Report charging plaintiff with violating Rule 105.12 Unauthorized Organizations/Activity. Dkt. #40, ¶ 13. Specifically, the Inmate Behavior Report states:
On the above date and time [12/6/04, approximately 6:55 p.m.], while making rounds, I saw a picture on the wall in cube #3 of a person showing gang signs with his hands. Inmate Miller 95G0491 is housed in cube #3. A contraband receipt was given for the picture. The picture and contraband receipt are attached to this report.
Dkt. #1, p.22. Plaintiff was served with a copy of the Inmate Misbehavior Report on or about December 7, 2004. Dkt. #1, p.26; but see, Dkt. #40, ¶ 19 (stating that plaintiff was served with a copy of the Misbehavior Report on December 8, 2004). According to the Case Data Worksheet which was signed by plaintiff, plaintiff was advised of the availability of Chapter V Inmate Standards-Behavior and Allowances and was advised of her right to have witnesses testify on her behalf. Dkt. #26, p.14; Dkt. #40, ¶ 19; Dkt. #42, ¶ 7. The Case Data Worksheet further reveals that plaintiff declined assistance in preparing for the hearing and did not identify any witnesses to be called to testify at the hearing. Dkt. #26, p.14; Dkt. #40, ¶¶ 20 and 24; Dkt. #42, ¶ 7.
Plaintiff's Tier III*fn1 disciplinary hearing was conducted on December 8, 2004 and commenced at approximately 9:35 a.m. and concluded at approximately 9:50 a.m. Dkt. #26, p.10. From time to time, defendant Education Supervisor Furlani's duties included conducting inmate disciplinary hearings as the Superintendent's designee pursuant to 7 N.Y. Comp. R. & Regs. § 254.1. Dkt. #40, ¶ 11. Indeed, defendant Furlani presided over plaintiff's December 8, 2004 Tier III disciplinary hearing. Dkt. #26, pp. 10-11. Plaintiff maintains that she testified at the disciplinary hearing that she "never was in any [sic] gang in [sic] the street prior to [her] arrest, and never was in any [sic] gang since [her] incarceration." Dkt. #1, ¶ 14. Plaintiff alleged in her complaint that defendant Furlani failed to consider her testimony at the hearing. Id. Conversely, defendant Furlani claims that page two of the Superintendent Hearing Disposition Rendered Form contains the following statement of the evidence relied upon, "[t]he report written by CO. Stickney and picture attached as well as the inmates [sic] testimony and past disciplinary record." Dkt. #26, pp.11; Dkt. #42, ¶ 9. Although as reflected on the Superintendent Hearing Disposition Rendered Form, defendant Furlani considered plaintiff's testimony in making his determination, with respect to plaintiff's denial of any involvement in gang activity, defendant Furlani did not find that testimony to be credible. Dkt. #42, ¶ 10. With respect to the notation on the Superintendent Hearing Disposition Rendered Form that defendant Furlani considered plaintiff's disciplinary history as part of the evidence, in support of his motion for summary judgment, defendant Furlani states that, "[c]onsideration of plaintiff's past disciplinary history should have been listed in Section B. [sic] Reasons for Disposition and not in Section A. This was an error on my part." Dkt. #42, ¶ 13.
After hearing the testimony and based on the Inmate Misbehavior Report, defendant Furlani found plaintiff guilty of violating Rule 105.12 and imposed a penalty of two months keeplock confinement, two months loss of recreation, packages, commissary and phone privileges beginning December 8, 2004 and continuing to February 8, 2004. Dkt. #40, ¶ 27; Dkt. #42, ¶ 16. On the Superintendent Hearing Disposition Rendered Form, Section B Reasons for Disposition, defendant Furlani noted that the reasons for the disposition were, "[t]o dissuade you from further possession [sic] gang related material. To impress on you the seriousness of such an infraction, and to ensure your behavior conforms with institution rules." Dkt. #26, p. 11; Dkt. #40, ¶ 26; Dkt. #42, ¶ 14.
Plaintiff was moved to keeplock confinement on December 8, 2004 and was thereafter transferred to the Special Housing Unit ("SHU") on December 9, 2004. Dkt. #40, ¶ 28. Plaintiff was advised of her right to appeal the determination to the Commissioner within thirty days of receipt of the disposition and signed the Hearing Disposition Rendered Sheet indicating that she had received a copy of the disposition dated December 8, 2004. Dkt. #26, p.11; Dkt. #40, ¶ 29; Dkt. #42, ¶ 17.
Plaintiff exercised her right to appeal on an Appeal Form to Commissioner Superintendent's Hearing dated December 8, 2004. Dkt. #26, p.9; Dkt. #40, ¶ 30; Dkt. #42, ¶ 18. On the Appeal Form, plaintiff ...