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Sital v. Burgio

January 8, 2009

FRANS SITAL, PLAINTIFF,
v.
C.O. J. BURGIO, ATTICA CORRECTIONAL FACILITY, C.O. C. SWEENEY, JAMES KENNEDY, COMMISSIONER HEARING OFFICER, RICHARD SAVAGE, DEPUTY SUPERINTENDENT PROGRAMS, D. O'CONNELL, SERGEANT ATTICA CORRECTIONAL FACILITY, C.O. T. TURICI, ATTICA CORRECTIONAL FACILITY, DEFENDANTS.



The opinion of the court was delivered by: David G. Larimer United States District Judge

DECISION AND ORDER

Plaintiff, Fans Sital, appearing pro se, commenced this action under 42 U.S.C. § 1983. Plaintiff, an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), alleges that his constitutional rights were violated in a number of ways during his confinement at the Attica Correctional Facility.

Defendants have moved for summary judgment dismissing the complaint pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff has moved for summary judgment on all but one of his claims. For the reasons that follow, defendants' motion is granted, plaintiff's motion is denied, and the complaint is dismissed.

DISCUSSION

I. False Misbehavior Reports

In his first cause of action, plaintiff alleges that his due process rights were violated when he was falsely charged with drug possession and smuggling. Plaintiff was found guilty of those charges after a Tier III hearing before defendant Hearing Officer James Kennedy, who sentenced plaintiff to eighteen months of confinement in the Special Housing Unit ("SHU").

On administrative appeal, Donald Selsky, the DOCS Director of Special Housing and Inmate Discipline, reversed the finding of guilt on the smuggling charge because the hearing record was incomplete. Dkt. #49-3 at 2. Selsky also affirmed the drug possession finding but reduced plaintiff's sentence to twelve months in SHU.

On Article 78 review, a state court ordered a rehearing on the drug possession charge, due to DOCS's failure to produce a complete hearing transcript. See Dkt. #49-2 at 59-61. Plaintiff was found not guilty upon rehearing before a different hearing officer. He was released from SHU after serving roughly nine and a half months of his twelve-month SHU sentence. Plaintiff's Statement of Facts (Dkt. #61-2) ¶ 14.

"The Second Circuit has held that the issuance of false misbehavior reports against an inmate by corrections officers is insufficient on its own to establish a denial of due process ... ." Faison v. Janicki, No. 03-CV-6475, 2007 WL 529310, at *4 (W.D.N.Y. Feb. 14, 2007) (citing Freeman v. Rideout, 808 F.2d 949, 952 (2d Cir. 1986), cert. denied, 485 U.S. 982 (1988)). See also Moore v. Casselberry, ___ F.Supp.2d ___, 2008 WL 4768831, at *1 (W.D.N.Y. 2008) ("There is no basis for a constitutional claim alleging the mere filing of a false report"); Flemings v. Kinney, No. 02 Civ. 9989, 2004 WL 1672448, at *3 (S.D.N.Y. July 27, 2004) ("It is well settled that 'a prison inmate has no general constitutional right to be free from being falsely accused in a misbehavior report'") (quoting Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir. 1997)).

Rather, to maintain an actionable claim against correction officers for filing a false misbehavior report, a plaintiff must be able to show either: (1) that he was disciplined without adequate due process, as a result of the report; or (2) that the report was issued in retaliation for exercising a constitutionally protected right.

Allen v. City of New York, 480 F.Supp.2d 689, 721 (S.D.N.Y. 2007). Accord Livingston v. Kelly, 561 F.Supp.2d 329, 331-32 (W.D.N.Y. 2008); Flemings, 2004 WL 1672448, at *3.

In the case at bar, plaintiff does not allege, nor is there any evidence, that defendants issued the allegedly false reports against him out of any retaliatory motive. He does allege that his due process rights were violated in connection with the subsequent Tier III hearing, and those allegations are addressed below. To the extent that plaintiff's claims are based solely upon the issuance of allegedly false misbehavior reports, however, they fail to show a constitutional violation and must be dismissed.

II. Disciplinary Hearing

A prison inmate charged with a disciplinary infraction is entitled under the Due Process Clause to: "advance written notice of the charges; a fair and impartial hearing officer; a reasonable opportunity to call witnesses and present documentary evidence; and a written statement of the disposition, including supporting facts and reasons for the action taken." Luna v. Pico, 356 F.3d 481 (2d Cir. 2004); accord Wolff v. McDonnell, 418 U.S. 539, 563-67 (1974); Shell v. Brzezniak, 365 F.Supp.2d 362, 376 (W.D.N.Y. 2005); see also Sira v. Morton, 380 F.3d 57, 69 (2d Cir. 2004) ("The due process ...


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