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Loving v. Selsky

January 12, 2009


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


Plaintiff, Shaheeb Loving, 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 have been violated in a number of respects in connection with certain incidents that occurred in December 2005 and January 2006, while plaintiff was confined at Attica Correctional Facility. Plaintiff has sued nine individual defendants, each of whom was a DOCS employee at the time of the relevant events.

Five of the defendants--Donald Selsky, Michael DiAngelo, Correction Officer ("C.O.") T. Clark, C.O. R. McJury, and Danna Smith--have moved for summary judgment dismissing the claims against them, pursuant to Rule 56 of the Federal Rules of Civil Procedure. A sixth defendant, Jennifer Infurnari, has moved to dismiss plaintiff's claim against her for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6). For the reasons that follow, defendants' motions are granted.


I. Claims Related to Plaintiff's Tier III Hearing

A. Inadequate Assistance

Plaintiff was involved in an incident with several C.O.s on December 29, 2005. As a result, he was issued misbehavior reports charging him with attempted assault, threats, and other violations.

A Tier III hearing on the charges against plaintiff was commenced on January 8, 2006, and completed on January 11, 2006. Defendant DiAngelo, a DOCS captain, was the hearing officer. Defendants Clark and McJury were assigned to assist plaintiff. At the conclusion of the hearing, DiAngelo found plaintiff guilty on all the charges against him, and imposed a sentence of twelve months' confinement in the Special Housing Unit ("SHU") and loss of privileges, and loss of six months of good time.

Plaintiff has asserted three claims related to the Tier III hearing. In one of them, plaintiff alleges that Clark and McJury failed to provide him with adequate assistance in connection with the hearing. Plaintiff alleges that they failed or refused to obtain certain evidence sought by plaintiff or otherwise to help plaintiff defend against the misbehavior charges.

The Second Circuit has held that "[p]rison authorities have a constitutional obligation to provide assistance to an inmate in marshaling evidence and presenting a defense when he is faced with disciplinary charges." Eng v. Coughlin, 858 F.2d 889, 897 (2d Cir. 1988). In particular, an inmate must be provided some assistance when circumstances hamper the inmate's ability to prepare a defense, such as when the inmate is confined to SHU prior to the hearing. See Ayers v. Ryan, 152 F.3d 77, 81 (2d Cir. 1998); Eng, 858 F.2d at 898; see also Hernandez v. Selsky, 572 F.Supp.2d 446, 453 (S.D.N.Y. 2008) ("the obligation to provide assistance is greater as the inmates' ability to prepare a defense is reduced").

It appears that Loving was confined to SHU immediately following the December 29 incident, and that he remained there from then until the end of the term of confinement imposed upon him by DiAngelo. See Def. Ex. N (hearing disposition form indicating that start date of plaintiff's penalty was "12/29/05"). Plaintiff was therefore entitled to some assistance in preparing for the Tier III hearing.

How much assistance is constitutionally required is another matter. It is clear that the scope of DOCS's obligation in this regard is significantly limited, and that an inmate's right to assistance in connection with a disciplinary hearing--which arises under the Due Process Clause of the Fourteenth Amendment, see Tate v. Wood, 963 F.2d 20, 26 (2d Cir. 19992) (citing Eng, 858 F.2d at 898), falls far short of the right to counsel that the Sixth Amendment guarantees to criminal defendants. Silva v. Casey, 992 F.2d 20, 22 (2d Cir. 1993) (per curiam).

An inmate in SHU, for example, is entitled to have someone--either another inmate or a DOCS staff member--to assist him, but the assistant is only required to "perform the investigatory tasks which the inmate, were he able [i.e., were he not confined to SHU], could perform for himself." Eng, 858 F.2d at 898. "The assistant is not obliged to go beyond the specific instructions of the inmate because if he did so he would then be acting as counsel in a prison disciplinary proceeding, assistance to which a prisoner is not entitled." Silva, 992 F.2d at 22.

In the case at bar, defendants Clark and McJury were assigned to assist plaintiff from among a list of names that he had selected as requested assistants. Def. Ex. D. Plaintiff alleges in his complaint that on January 2, 2006, Clark came to his cell, but began arguing with plaintiff about plaintiff's requests that Clark interview certain witnesses and obtain certain documents. Complaint at 6 ΒΆ 6. It is not clear from the complaint what the argument was about, but plaintiff alleges that "Clark left," and that on January 4, McJury came to ...

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