The opinion of the court was delivered by: Gary L. Sharpe U.S. District Judge
MEMORANDUM-DECISION AND ORDER
Plaintiff Carlos Rivera ("Rivera") brings this action pursuant to 42 U.S.C. § 1983 alleging his constitutional due process rights were violated in the course of two disciplinary hearings conducted by defendant Lt. Casey. Compl. ¶ 1, Dkt. No. 1. Presently pending is defendants motion for summary judgment. Dkt. No. 32. For the reasons that follow the motion is granted.
The facts, construed in the light most favorable to Rivera as the non-moving party, are as follows.*fn1 Rivera was confined at Mid-State Correctional Facility in the custody of the New York State Department of Correctional Services ("DOCS"). Defendants' Statement Pursuant to Rule 7.1(a)(3) ("Defs. SMF") ¶ 1, Dkt. No. 32:3. On August 11, 2005, Correction Officer Kinville issued a misbehavior report to Rivera charging him with violations of DOCS Rules 113.23 (contraband), 118.21 (flammable materials), and 109.10 (out of place). Compl. ¶¶ 10-12, Dkt. No. 1; Defs. SMF ¶ 2, Dkt. No. 32:3.*fn2 Rivera was placed "on room restriction (cube confined) to await formal disciplinary proceedings." Compl. ¶ 11, Dkt. No. 1. Lt. Casey, the hearing officer, found Rivera guilty of violating DOCS rules and imposed a penalty of thirty (30) days room restriction and a corresponding loss of privileges; with 15 days of the penalty suspended and deferred for 90 days. Defs. SMF ¶ 4, Dkt. No. 32:3; Defs. SMF Ex. A (Disciplinary Hearing Disposition); Dkt. No. 32:4.*fn3
Rivera appealed, claiming Lt. Casey improperly denied him the right to call a witness. Defs. SMF Ex. C (Appeal Form), Dkt. No. 32:4. Capt. Labriola, who heard Rivera's appeal, found that Rivera's request to call the Fire and Safety Officer as a witness was not properly addressed by Lt. Casey and dismissed the flammable materials charge. Defs. SMF ¶¶ 5-6, Dkt. No. 32:3; Defs. SMF Ex. C (Appeal Form), Dkt. No. 32:4. However, finding that the requested witness had no bearing on the other two charges, Capt. Labriola affirmed those findings and the penalty. Id.
Rivera received a second misbehavior report from Correction Officer Kinville on August 20, 2005. Defs. SMF ¶ 7, Dkt. No. 32:3.*fn4 Lt. Casey again served as the hearing officer. Id. ¶ 8. Rivera was found guilty of the charges at a Tier II hearing held August 26, 2005 and was assessed a penalty of thirty (30) days room restriction and loss of privileges. Id. ¶ 9; Defs. SMF Ex. D (Disciplinary Hearing Determination), Dkt. No. 32:4. The disciplinary determinations were affirmed on appeal by defendant Deputy Superintendent Kadien. Defs. SMF ¶ 10, Dkt. No. 32:3.*fn5
Rivera filed his complaint pro se on November 2, 2005. Rivera was granted leave to proceed in forma pauperis and service of process was effected on the defendants. Dkt. Nos. 4-8. Defendants filed their answer on February 17, 2006 (Dkt. No. 12) and a Pretrial Scheduling Order was issued setting dates for completion of discovery and the filing of pretrial motions. Dkt. No. 13. Following a pretrial conference conducted by Magistrate Judge George H. Lowe, pro bono trial counsel was appointed to represent Rivera. Dkt. No. 28.*fn6
The summary judgment standard is well-established, and will not be repeated here. For a full discussion, the court refers the parties to its opinion in Bain v. Town of Argyle, 499 F. Supp. 2d 192, 194-95 (N.D.N.Y. 2007).
I. Procedural Due Process Claims
To successfully establish a claim under 42 U.S.C. § 1983 for denial of due process arising out of a disciplinary hearing, a plaintiff must establish both the existence of a protected liberty interest and that he or she was deprived of that interest without being afforded sufficient process. See Sandin v. Conner, 515 U.S. 472, 483-85 (1995); Tellier v. Fields, 280 F3d 69, 79-80 (2d Cir. 2000); Hynes v. Squillace, 143 F.3d 653, 658 (2d Cir. 1998) (per curiam). In Sandin, the Supreme Court determined that such protected liberty interests from restrictive confinement will generally be limited to freedom from restraint which imposes an "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id at 484; see also Tellier, 280 F.3d at 80; Hynes, 143 F.3d at 658. The "atypicality" inquiry under Sandin is normally a question of law. Colon v. Howard, 215 F.3d 227, 230-31 (2d Cir. 2000); Sealey v. ...